Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?

Evan J. Wallach¹

Following the terrorist attacks of 11 September 2001, Presi-With this background, Section II traces the history of mili­dent Bush issued a military order providing for trials of cap-tary commissions.  The article then emphasizes the evidentiary tured members of al Qaeda and their Taliban supporters by and procedural problems associated with the post-World War II military tribunals² under evidentiary and appellate rules similar military commission rules derived from Ex parte Quirin,⁵ upon to those used in military commissions during and after World which President Bush’s proposed commissions are based. War II.  The thesis of this article is that these rules violate the Next, Section III discusses the legality of military tribunals Geneva Convention Relative to the Treatment of Prisoners of under current international law. Section IV then argues that War (GPW) because they do not provide an accused with the Quirin-based military commissions fail to meet current stan­same rights accorded a U.S. service member charged with a dards for trying POWs and that they fail to satisfy the proce­similar offense.³ Also, the proposed rules do not meet current dural and evidentiary requirements of the Uniform Code of international law standards for trials of war criminals.  As a Military Justice (UCMJ).  Finally, based upon the precedent of result, any participant in a military commission trial of a person United States v. Uchiyama,⁶ the article concludes that partici­protected by the GPW would, in turn, be guilty of a breach of pating in such a commission, when it tries a POW, violates the the GPW, a war crime under U.S. law.⁴ law of war.

I. Introduction A.  Background

This article examines the structure and history of applicable On 11 September 2001, thousands of civilians were mur­sections of GPW and their application to the proposed defen-dered when armed conspirators hijacked three airliners and dants.  Section I outlines the promulgation of President Bush’s used them as flying bombs to attack the World Trade Center military order, concluding that the system fails to provide ade-complex in New York City and the Pentagon in Washington, quately for those accorded Prisoner of War (POW) status.  This D.C.  The passengers of a fourth hijacked aircraft foiled an article then argues that members of the Taliban and possibly additional attack, but that flight ended in the deaths of the pas-certain al Qaeda members qualify for POW status under the sengers, crew, and hijackers. The President of the United States GPW as detainees of an international conflict.  In this context, immediately characterized those attacks as “an act of war.”⁷ Section I then identifies the issues raised by America’s current Shortly thereafter, he announced that credible evidence pointed proposed use of military commissions. to Osama bin Laden, the leader of the al Qaeda terrorist group,

and members of bin Laden’s organization.⁸

                    1. Judge, U.S. Court of International Trade; Adjunct Professor, Law of War, Brooklyn Law School, New York Law School; Visiting Professor, Law of War, University of Münster; Major (JAG) U.S. Army (Inactive Reserve, until July 2003); and Webmaster, International Law of War Association, Law of War Home Page, at http:// www.lawofwar.org.  J.D., Berkeley, 1976; LL.B. (International Law), Cambridge, 1981. The author dedicates this article to the memory of his father, Albert A. Wallach, 1916-2002, who served from private to captain in the United States Army from 1941 to 1946 and to the memory of U.S. Supreme Court Associate Justice Frank Murphy. The author thanks Sara Schramm of Brooklyn Law School and Raymond Cho of Columbia Law School for their research assistance with this article. Tremendous gratitude is also owed to the numerous editors at the Army Judge Advocate General’s School who challenged the author to make this a more accurate, comprehensive and complete work. The author’s views in this article represent only those of the author and not of any person with whom, or entity with which, he is or was affiliated.

                    Portions of this article are reprinted from the author’s previous work, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials:  Did They Provide an Outline for International Legal Procedure?, 37 COLUM. J. TRANSNAT’L L. 851 (1999). The Columbia School of Law has granted permission to reprint the article.

2                  Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001), available at http://www.white­house.gov/news/releases/2001/11/20011113-27.html; U.S. DEP’T OF DEFENSE, MILITARY COMMISSION ORDER NO. 1 (21 Mar. 2002), available at http:// www.defenselink.mil/news/commissions.html [hereinafter MCO No. 1]; Procedures for Trials by Military Commissions of Certain Non-U.S. Citizens in the War Against Terrorism, 68 Fed. Reg. 39,374-99 (July 1, 2003) (to be codified at 32 C.F.R. pts. 10-17).

3                  Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 3, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW]; see MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. II (2002) [hereinafter MCM].

4                  MCM, supra note 3, art. 130; see secs. I.B-I.C, infra (analyzing who is entitled to prisoner of war (POW) status, and when and how this status is determined).

5                  317 U.S. 1 (1942).

6                  Case-35-46, War Crimes Branch Case Files, Records of The Judge Advocate General, Record Group 153 (Yokohama, 18 July 1947) (on file with author).

As al Qaeda members planned and carried out the attacks in While the Taliban equivocated, the United States engaged in America, bin Laden and his terrorist network were living in extensive diplomacy. On 7 October, with the consent of coun­sanctuary in Afghanistan.  President Bush, characterizing the tries surrounding Afghanistan, the United States began exten-

U.S. response to those attacks as a “war on terror,”⁹ demanded sive air attacks on the Taliban military infrastructures and the al that Afghanistan’s ruling party, the Taliban, end that sanctuary Qaeda terrorist organization.¹³  By 21 December 2001, the and turn the members of al Qaeda over to American custody.¹⁰ allied coalition held in custody about seven thousand suspected On 18 September 2001, in a joint resolution, Congress, without al Qaeda and Taliban members in Afghanistan.¹⁴ declaring war, authorized military action against the Taliban.¹¹ By the end of September, the United Nations Security Council On 13 November 2001, President Bush issued a military had also adopted two resolutions which (1) identified the order providing for the trial of non-U.S. citizens who were attacks on the United States as a threat to international peace members or culpable supporters of al Qaeda before military tri­and security; and (2) mandated that states “[d]eny safe haven to bunals.¹⁵  That order, and subsequent statements by the Presi­those who finance, plan, support, or commit terrorist acts.”¹² dent,¹⁶ Vice President,¹⁷ Attorney General,¹⁸ Secretary of Defense,¹⁹ the White House Counsel,²⁰ and others,²¹ made it

1                  BBC News Online, Bush Calls Attacks “Acts of War” (Sept. 12, 2001), at http://news.bbc.co.uk/hi/english/world/americas/newsid_1537000/1537534.stm (last visited Nov. 17, 2003).

2                  See, e.g., President George W. Bush, Speech to the Joint Session of Congress, Washington, D.C. (Sept. 20, 2001) (“The evidence we have gathered all points to a collection of loosely affiliated terrorist organizations known as al Qaeda.”).

3                  Id.

4                   Id.

5                   S.J. Res. 23, 107th Cong. (2001) (enacted as Pub. L. No. 1-7-40, 115 Stat. 224). In a further response to the attacks, on 26 October 2001, Congress adopted the USA Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, which addresses domestic national security issues.

6                   S. Con. Res. 1368, U.N. SCOR, 56th Sess., 4370th mtg., U.N. Doc. S/RES/1368 (2001); S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., U.N. Doc. S/RES/ 1373 (2001).

7                   Ian Christopher McCaleb, Bush Announces Opening of Attacks, CNN.com (Oct. 7, 2001), available at http://www.cnn.com/2001/US/10/07/ret.attack.bush/

8                  US Questions 7,000 Taliban and al-Qaeda Soldiers, GUARDIAN (Dec. 21, 2001), available at http://www.guardian.co.uk/afghanistan/story/ 0,1284,623701,00.html.

9                  See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001), available at http://www.white­house.gov/news/releases/2001/11/20011113-27.html [hereinafter Bush Order]. The Bush Order provides, in part, that individuals subject to the order include: (1) current or past members of al Qaeda; (2) individuals who “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore” that adversely affected wide United States interests; and (3) individuals who “knowingly harbored one or more individuals” described above. Id. sec. 2(A).

10                 On 19 November 2001, President Bush said that the nation was fighting “against the most evil kinds of people, and I need to have that extraordinary option at my fingertips.”  Elisabeth Bumiller, Military Tribunals Needed in Difficult Time, Bush Says, N.Y. TIMES, Nov. 20, 2001, at B5.

11                 Vice President Dick Cheney, responding to questions following his speech to the U.S. Chamber of Commerce on 14 November 2001,

[S]poke favorably of World War II saboteurs being “executed in relatively rapid order” under military tribunals set up by President Franklin D. Roosevelt . . . . A military tribunal, he said, “guarantees that we’ll have the kind of treatment of these individuals that we believe they deserve” . . . The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans[,] . . . is not a lawful combatant . . . .  They don’t deserve to be treated as prisoners of war.

Elisabeth Bumiller & Steven Lee Myers, A Nation Challenged: The Presidential Order; Senior Administration Officials Defend Military Tribunals for Terrorist Sus-pects, N.Y. TIMES, Nov. 15, 2001, at B6.

This statement raises a serious question—can a terrorist operating under civilian cover in the United States claim POW status? Under the Hague Regulations, a spy falls outside the protection of the Geneva Convention and may be subject to the death penalty depending on the domestic law of the state where he was caught. Hague Convention IV Respecting the Laws and Customs of War on Land, Annexed Regulations, art. 29, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Regulations].

18. According to the Attorney General, John Ashcroft,

 Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution, particularly when there could be very serious and important reasons related to not bringing them back to the United States for justice.  I think it’s important to understand that we are at war now.

Robin Toner & Neil A. Lewis, White House Push on Security Steps Bypasses Congress, N.Y. TIMES, Nov. 15, 2001, at A1.

clear that the tribunals were intended to follow procedural and order.  While it appears that MCO No. 1 made some advances evidentiary rules similar to those used to try spies and war crim-towards fairness, including finessing the Presidential order’s inals during and after the Second World War.²² two-third’s sentencing requirement,²⁷ it retained the World War II evidentiary rules and failed to provide a system of indepen-

Those rules, as applied between 1942 and 1947, do not meet dent appeals.  Therefore, MCO No.1 confirms the Bush Admin­the current international law standards for trials of prisoners of istration’s intention to deny defendants the evidentiary rules war.²³  Moreover, they are insufficient under the requirements and procedural safeguards, provided under the Uniform Code of GPW.²⁴ The U.S. Army teaches that “treaty obligations pro-of Military Justice (UCMJ).  Thus, even though MCO No.1 vide a floor of procedural rights, at least as to offenses by pris-“made concession to critics who worried that President Bush’s oners of war, that precludes military commissions in this original order . . . had codified a secret rigged system,”²⁸ the category of cases.”²⁵ system created still fails to provide the trial rights guaranteed to

a prisoner of war (POW) under GPW.

On 21 March 2002, the Secretary of Defense promulgated Military Commission Order No. 1 (MCO No.1),²⁶ which pre-On 1 July 2003, the Department of Defense (DOD) issued a scribes procedures for tribunals under the President’s military series of rules and regulations concerning military tribunals.²⁹

19. Secretary of Defense Donald Rumsfeld recognized

that the rules for military tribunals would be decidedly differently [sic] from those for civilian trials. And Pentagon officials said today that they were devising regulations that were likely to include a more flexible standard for evidence than civilian trials would accept.  They said the tribunals would probably allow a conviction of a suspected terrorist on a two-thirds vote of the officers on the panel.

Steven Lee Myers & Neil A. Lewis, Assurances Offered About Military Courts, N.Y. TIMES, Nov. 16, 2001, at B10. The military order itself provides for “sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present.”  Bush Order, supra note 15, sec. 4(c)(7).

1                   At a meeting of the American Bar Association’s Standing Committee on Law and National Security, White House Counsel Alberto Gonzales acknowledged nearly identical provisions in the two orders. COMMITTEE ON MILITARY AFFAIRS AND JUSTICE OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, INTER ARMA SILENT LEGES: IN TIMES OF ARMED CONFLICT SHOULD THE LAWS BE SILENT?  A REPORT ON THE PRESIDENT’S MILITARY ORDER OF NOVEMBER 13, 2001 REGARDING “DETENTION, TREAT­MENT, AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR AGAINST TERRORISM” (2001), available at http://www.abcny.org/pdf/should_the_laws.pdf.

                    21. See Bumiller & Myers, supra note 17, at 6.  Former Attorney General William P. Barr  is credited with bringing the idea of military tribunals to the attention of the White House.  He stated, “What I don’t understand about civil libertarians is, if our boys did something wrong in this conflict, they’d be tried in a military court. An al Qaeda terrorist shouldn’t have any claim to different procedures.”  Robin Toner, Civil Liberty vs. Security:  Finding a Wartime Balance, N.Y. TIMES, Nov. 18, 2001, at A1. A member of the U.S. military charged with war crimes would, of course, be tried under the UCMJ and its Military Rules of Evidence (MRE). As discussed below, the UCMJ and the MRE provide substantial guarantees of a fair and impartial trial. See infra sec. IV.

                    In his 14 November 2001 statement, see supra note 17, Vice President Cheney said that “[t]he basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans[,] . . . is not a lawful combatant . . . .  They don’t deserve to be treated as prisoners of war.”  Bumiller & Myers, supra note 17, at 6.  The Vice President’s statement raises a serious question.  Can a terrorist operating under civilian cover in the United States claim POW status?  The question may be somewhat mooted, however, by the fact that any claim of status necessarily implies the claimant is a combatant captured while engaged in hostilities, but not in uniform; to wit, a spy. Under the Hague Regulations, a spy falls outside the protection of the Geneva Convention and is subject to the death penalty. Hague Convention IV Respecting the Laws and Customs of War on Land, Annexed Regulations, art. 29, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Regulations].

2                  The New York Times reported that “[a] Bush administration official with knowledge of the planning said officials had been studying the World War II cases.” William Glaberson, Closer Look at New Plan for Trying Terrorists, N.Y. TIMES, Nov. 15, 2001, at B6.  “[A]s one White House official put it, ‘it’s a new reality.’  The old rules, the old legal and law enforcement cultures, have to change . . . .” Toner, supra note 21, at 1. Thus, something more effective than civilian law enforcement is necessary.  According to the New York Times, “The incident that was uppermost on the minds of Bush administration officials in setting up tribunals took place in June 1942, when Nazi Germany dispatched eight saboteurs to this country to blow up war industries . . . .” Id.  That incident resulted in the military commission procedures used in Ex parte Quirin, 317 U.S. 1 (1942). “‘The commission itself is going to be unique,’ said one military officer involved in the discussions. ‘It will be separate and distinct from a civilian criminal trial.  It will be separate and distinct from a court-martial.’”  Matthew Purdy, Bush’s New Rules to Fight Terror Trans-form the Legal Landscape, N.Y. TIMES, Nov. 25, 2001, at A1.

3                  See the discussion related to the application of these rules infra notes 164-187 and accompanying text. See also the discussion related to current international standards infra notes 198-231.

4                  See id. arts. 85 (“Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention.”), 102.  Article 102 states the following:

A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedures as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed.

Id.

These trial procedure regulations retain the World War II evi-result, they still fail to meet the essential requirements for trying dence rule which states: POWs.

(d) Evidence—(1) Admissibility. Evidence shall be admitted if, in the opinion B. The POW Status of Captured Members of the Taliban of the Presiding Officer (or instead, if any and Al Qaeda other member of the Commission so requests at the time the Presiding Officer renders that If the conflict in Afghanistan is in fact an international opinion, the opinion of the Commission ren-armed conflict,³² then the coalition forces may have to treat the dered at that time by a majority of the Com-detained Taliban and possibly al Qaeda members as POWs.³³ mission), the evidence would have probative The GPW was drafted, in part, to address conflicts in which one value to a reasonable person.³⁰ state does not recognize the legitimacy of the government of

another. ³⁴  It covers “all cases of declared war or any other

The regulations also fail to provide for a system of independent armed conflict, which may arise between two or more of the

appeals, instead tracking the procedure of MCO No.1.³¹ As a High Contracting Parties, even if the state of war is not recog­

nized by one of them.”³⁵  Article 4(3) of GPW includes as

25. INT’L & OPERATIONAL LAW DEP’T, THE JUDGE ADVOCATE GENERAL’S SCHOOL, U.S. ARMY, LAW OF WAR WORKSHOP DESKBOOK ch. 8, at 216 (2000), available at http:/ /www.jagcnet.army.mil/TJAGLCS.  The deskbook notes the following:

In theory, [military commissions] could provide very limited evidentiary and procedural formality, see, e.g, Yamashita, 327 U.S. [1,] 18 [(1946)] and a very streamlined appeal process. Cf. Eisentrager v. Forrestal, 174 F.2d 961 (1949) (finding that German nationals, confined in custody of the U.S. Army in Germany following conviction by military commission of having engaged in military activity against the United States after the surrender of Germany, had substantive right to writ of habeas corpus to test legality of their detention) . . . .  But treaty obligations provide a floor of procedural rights, at least as to offenses by prisoners of war, that precludes military commissions in this category [cases where the accused has POW status] of cases.

Id. Eisentrager was, of course, reversed in Johnson v. Eisentrager, 339 U.S. 763 (1950).

1                   MCO No.1, supra note 2.

2                  Id., sec. 6(F) (providing that “[a]n affirmative vote of two-thirds of the members is required to determine a sentence, except that a sentence of death requires a unanimous, affirmative vote of all the members”).

3                  Katherine Q. Seelye, Government Sets Rules for Military on War Tribunals, N.Y. TIMES, Mar. 21, 2002, at A1.

4                  Procedures for Trials by Military Commissions of Certain Non-U.S. Citizens in the War Against Terrorism, 68 Fed. Reg. 39,374-99 (July 1, 2003) (to be codified at 32 C.F.R. pts. 10-17).

5                  Id. § 9.6(h)(1).

6                  See id.; MCO No. 1, supra note 2.

7                  The invasion by armed forces of one state into the territory of another, supported by massive air strikes against command, control, and communications targets equals an Article 2, international armed conflict. Thus, it activates the remainder of the GPW.  This is true, even if a de facto government rules the invaded state. See Kadic v. Karadzic, 70 F.3d 232, 244-45 (2d Cir. 1995) (“[A] state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities . . . .”).

8                  See GPW, supra note 3, art. 2.

9                  This point was made clear during the discussions relating to the drafting of Article 2.  As the Official Commentary to Article 2 notes:

The Preliminary Conference of National Red Cross Societies, which the International Committee of the Red Cross convened in 1946, fell in with the views of the Committee and recommended that a new Article, worded as follows, should be introduced at the beginning of the Con­vention:  “The present Convention is applicable between the High Contracting Parties from the moment hostilities have actually broken out, even if no declaration of war has been made and whatever the form that such armed intervention may take.” The Conference of Government Experts recommended in its turn that the Convention should be applicable to “any armed conflict, whether the latter is or is not recognized as a state of war by the parties concerned,” and also to “cases of occupation of territories in the absence of any state of war.”  Taking into account these recommendations, the International Committee of the Red Cross drew up a draft text, which was adopted by the XVIIth International Red Cross Conference and subsequently became Article 2 of the Convention . . . .

Commentary to GPW, available at http://www.icrc.org/IHL.nsf/1a13044f3bbb5b8ec12563fb0066f226/07b4dad7719e37e4c12563cd00424d17?OpenDocument [hereinafter OFFICIAL COMMENTARY TO GPW].

35. GPW, supra note 3, art. 2.

POWs “[m]embers of regular armed forces who profess alle­giance to a government or an authority not recognized by the The more interesting question is whether those members of Detaining Power.”³⁶ al Qaeda captured in combat in Afghanistan and fighting as

auxiliaries to the Taliban are entitled to treatment as POWs.

Even if the Taliban was not recognized as a de facto govern-The al Qaeda member could be entitled to POW treatment ment, Article 4(3) deems members of the Taliban as protected under the following theories:  (1) as a member of the Taliban combatants.³⁷  Various U.N. Security Council resolutions armed forces; (2) an irregular adjunct to the Taliban armed directed at the Taliban before its defeat make that government’s forces; or (3) part of a levee en masse or popular uprising. de facto status clear.  For example, in demanding that the Tali-ban cease providing sanctuary for international terrorists, U.N. Security Council Resolution 1267 specifically references “the 1.  The Taliban and Possibly al Qaeda Are Entitled to POW territory under its control.”³⁸  Because Afghanistan is a signa-Status Even Without Application of the Four-Part Test As Set tory of GPW,³⁹ any interpretation of article 4(3) includes mem-Forth in Article 4 of the GPW bers of the Taliban as protected combatants even if the Taliban is not recognized as a de facto government.⁴⁰ Furthermore, In determining the legal status of the Taliban and al Qaeda before 11 September 2001, the United Arab Emirates, Saudi detainees, the preliminary question often asked is whether those Arabia, and Pakistan had formally recognized the Taliban as the detainees qualify as legal combatants.⁴²  The Bush administra­de jure government of Afghanistan and entered into diplomatic tion argues that to qualify as legal combatants, the detainees⁴³ relations.⁴¹ must meet the requirements of GPW Article 4(A)(2), which

1                  Id. art. 4(3).

2                  Id.

3                  U.N. SCOR, 54th Sess., 4051st mtg., at 1, U.N. Doc. S/RES/1267 (1999).

4                  Id.; see International Committee of the Red Cross, States Party to the Geneva Conventions and Their Additional Protocols, at http://www.icrc.org/Web/Eng/ siteeng0.nsf/iwpList444/77EA1BDEE20B4CCDC1256B6600595596 (last visited Nov. 19, 2003).

5                   The President has apparently recognized this point.  In a White House briefing, Presidential Press Secretary Ari Fleischer said: “Afghanistan is a party to the Geneva Convention. Although the United States does not recognize the Taliban as a legitimate Afghani government, the President determined that the Taliban mem­bers are covered under the Treaty because Afghanistan is a party to the Convention.” Press Release, Statement by White House Press Secretary Ari Fleischer (Feb. 7, 2002), available at http://www.us-mission.ch/press2002/0802fleischerdetainees.htm [hereinafter Fleisher Statement].

In a later expansion of that discussion Mr. Fleischer said:

Afghanistan is a party to the Geneva Convention. Although the United States does not recognize the Taliban as a legitimate Afghani govern­ment, the President determined that the Taliban members are covered under the treaty because Afghanistan is a party to the Convention.

Under Article 4 of the Geneva Convention, however, Taliban detainees are not entitled to POW status. To qualify as POWs under Article 4, al Qaeda and Taliban detainees would have to have satisfied four conditions: They would have to be part of a military hierarchy; they would have to have worn uniforms or other distinctive signs visible at a distance; they would have to have carried arms openly; and they would have to have conducted their military operations in accordance with the laws and customs of war.

The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the al Qaeda.

See Statement by the Press Secretary on the Geneva Convention, May 7, 2003, at http://www.whitehouse.gov/news/releases/2003/05/20030507-18.html.

1                  See CNN, UAE Withdraws Recognition from the Taliban (Sept. 22, 2001), at http://www.cnn.com/2001/US/09/21/gen.america.under.attack.

2                  See, e.g., Ruth Wedgewood, Prisoners of a Different War, FIN. TIMES, Jan. 30, 2002.  Professor Wedgewood states,

The convention’s premise is that both parties to the conflict will obey the fundamental rules for lawful belligerency: that any fighting force must refrain from terrorizing innocent civilians and avoid masking soldiers in civilian dress, lest an adversary target innocent civilians in response.

The test is put in four parts.  Lawful combatants must have a responsible commander (to ensure accountability for violations); wear a fixed distinctive sign visible at a distance; carry their arms openly; and fight in accordance with the laws and customs of war.

These requirements apply as much to regular armies as to militia forces. It is thus fallacious to suppose that the Taliban should be allowed any exemption.

Id.

require that a “[m]ember[ ] of the armed forces [of an opposing . . have[ ] a fixed distinctive sign recognizable at a distance; (c) Party],”⁴⁴ as well as “[m]embers of . . . militias [or] volunteer . . . carry[ ] arms openly; [and] . . . conduct[ ] their operations corps” forming part of those armed forces⁴⁵ must “(a) . . . be[ ] in accordance with the laws and customs of war,”⁴⁶ require-commanded by a person responsible for his subordinates; (b) . ments otherwise known as GPW’s four-part test.

43. In a news conference on 27 January 2002, Secretary of Defense Rumsfeld was quite clear on this issue:

These are detainees.

The Convention in certain situations raises the possibility if there are ambiguities that you can have a three-person panel or tribunal to sort out those ambiguities. There are not ambiguities in this case. The al Qaeda is not a country. They did not behave as an army.  They did not wear uniforms.  They did not have insignia.  They did not carry their weapons openly.  They are a terrorist network.  It would be a total misunder­standing of the Geneva Convention if one considers al Qaeda, a terrorist network, to be an army and therefore ambiguous and requiring the kind of sort that you’ve suggested.

With respect to the Taliban, the Taliban also did not wear uniforms, they did not have insignia, they did not carry their weapons openly, and they were tied tightly at the waist to al Qaeda. They behaved like them, they worked with them, they functioned with them, they cooperated with respect to communications, they cooperated with respect to supplies and ammunition, and there isn’t any question in my mind—I’m not a lawyer, but there isn’t any question in my mind but that they are not, they would not rise to the standard of a prisoner of war.

Secretary of Defense Donald H. Rumsfeld, Remarks on Ferry from Air Terminal to Main Base, Guantanamo Bay, Cuba (Jan. 27, 2002), available at http:// www.defenselink.mil/news/Jan2002/t01282002_t0127sd2.html; see also Secretary of Defense Donald H. Rumsfeld & General Richard Myers, Chairman, Joint Chiefs of Staff, Department of Defense News Brief, Washington, D.C. (Feb. 8, 2002), available at http://www.defenselink.mil/news/Feb2002/t02082002_t0208sd.html. On that same day Secretary Rumsfeld also said that:

There is a definition of what a lawful combatant is and there are four or five criteria that people look to historically. There's precedent to this, and there is a reasonable understanding of what an unlawful combatant is.

The characteristics of the individuals that have been captured is that they are unlawful combatants, not lawful combatants. That is why they are characterized as detainees and not prisoners of war. The al Qaeda are so obviously a part of a terrorist network as opposed to being part of an army -- they didn't go around with uniforms with their weapons in public display, with insignia and behave in a manner that an army behaves in; they went around like terrorists, and that's a very different thing.

It's important for people to recognize that this is a different circumstance, the war on terrorism. It requires a different template in our thinking. All of the normal ways that we think about things simply don't work.

For example, there were no armies or navies or air forces for us to go after in Afghanistan. We're going after terrorists.

See Rumsfeld, U.S. Senators Brief Media at Guantanamo Bay, United States Mission to the European Union, Jan 27, 2002, at http://www.useu.be/Terrorism/USRe­sponse/Jan2702RumsfeldSenatorsGuantanamo.html.

In the press briefing of 8 February 2002, Secretary Rumsfeld said:

The determination that Taliban detainees do not qualify as prisoners of war under the convention was because they failed to meet the criteria for POW status.

A central purpose of the Geneva Convention was to protect innocent civilians by distinguishing very clearly between combatants and non-com­batants.  This is why the convention requires soldiers to wear uniforms that distinguish them from the civilian population.  The Taliban did not wear distinctive signs, insignias, symbols or uniforms. To the contrary, far from seeking to distinguish themselves from the civilian population of Afghanistan, they sought to blend in with civilian non-combatants, hiding in mosques and populated areas.  They were not organized in mil­itary units, as such, with identifiable chains of command; indeed, al Qaeda forces made up portions of their forces.

Id. In addition, Presidential Press Secretary Ari Fleischer stated that

[u]nder Article 4 of the Geneva Convention, . . . Taliban detainees are not entitled to POW status. To qualify as POWs under Article 4, Al Qaeda and Talilban detainees would have to have satisfied four conditions: they would have to be part of a military hierarchy; they would have to have worn uniforms or other distinctive signs visible at a distance; they would have to have carried arms openly; and they would have to have conducted their military operations in accordance with the laws and customs of war.

The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. Instead, they have knowingly adopted and provided support to the unlawful terrorist objectives of the Al Qaeda.

Fleischer Statement, supra note 40.

1                  GPW, supra note 3, art. 4(A)(1).

2                  Id. art. 4(A)(2).

a.  The Parties to GPW Did Not Intend to Subject Regular In discussing this proposed language, the Soviet Union rep-Armed Forces and Constituent Militia and Volunteer Units to resentative said that “the working text would appear [to require] the Four-Part Test members of the Armed forces . . . to fulfill the four traditional requirements . . . in order to obtain prisoner of war status, which According to the traveaux preparitoires of Article 4, the four was contrary to the Hague Regulations.”⁵² The Chair proposed qualifying requirements for POW status under Article 4(A)(2) splitting the draft text of Article 4 into subparagraphs that apply only to militias, volunteer corps, and organized resistance divided “members of the armed forces” and “militias and vol­groups which do not form part of the armed forces of a party to unteer corps” in order “to overcome the drafting difficulty.”⁵³ the conflict.⁴⁷ To make this distinction clear, the drafters split The Soviet response was that it was necessary to distinguish Article 4(A) ⁴⁸ into two subparagraphs, Article 4(A)(1) and between “(a) The militia or volunteer corps which constituted Article 4(A)(2).⁴⁹ Following extensive debate on Article 4,⁵⁰ or were part of the army; [and] (b) The militia or volunteer the Rapporteur and the Secretariat proposed a working text that corps which were not part of the army.  Only those groups to defined prisoners of war as “[m]embers of armed forces who which (b) related should fulfill all four conditions.”⁵⁴ The rea-are in the service of an adverse belligerent, as well as members son was “that even with the suggested wording, the new sub-of militia or volunteer corps, belonging to such belligerent, and paragraphs (1) and (2) would not correspond to the Hague Reg-fulfilling [the conditions of Hague Convention IV.”⁵¹ ulation.”⁵⁵ After further discussion, the Committee “deemed it

desirable” to “draft a text as close as possible to that of the Hague Regulation of 1907.”⁵⁶  The resulting draft contained the

1                  Id. art. 4(A)(2(a)-(d).

2                   2 FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949, at 465-67 [hereinafter FINAL RECORD] (reprinting the traveaux preparitoires).

3                    In the initial draft (the Stockholm Draft), what became Article 4 was Article 3. For clarity, this article refers to Article 3 in the Stockholm Draft as Article 4. For numerical comparison of the 1929 Convention, the Stockholm Draft, the working draft and the final GPW Convention see, 3 FINAL RECORD, supra note 47, at 217.

4                   During negotiations, a Special Committee was formed to draft Article 4. The Special Committee’s Rapporteur described Article 4 as “the keystone of the Con­vention.” 2 FINAL RECORD, supra note 47, at 386 (Committee II, 30th mtg.).

He explained, among other things, that in order to coordinate the Convention with the Hague Regulations of 1907 respecting the Laws and Customs of War on Land, the Special Committee had first of all decided to insert the four conditions with which militias or volunteer corps not forming part of the regular armed forces must comply immediately after the end of sub-paragraph I of the first paragraph of Article [4]. In order to avoid any possibility of misunderstanding, it was subsequently decided to subdivide sub-paragraph I into two separate sub-paragraphs, a new subparagraph 1 relating to members of the armed forces and members of militias or volunteer corps forming part of those armed forces and a new sub-paragraph 2 relating to members of other militias and volunteer corps which were required to fulfill the four conditions laid down in the Hague Regulations.

Id. at 387 (emphasis added).

1                   3 FINAL RECORD, supra note 47, at 465-467. This debate took place at the 21st meeting of the Special Committee. Id.

2                   Hague Regulations, supra note 17, art. 1. To satisfy the requirements of the four-part test, the conditions of the Convention required the following:

Article 1.  The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

[1] To be commanded by a person responsible for his subordinates;

[2] To have a fixed distinctive emblem recognizable at a distance;

[3] To carry arms openly; and

[4] To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination “army.”

Id. art. 1 (emphasis added).

The emphasized language makes clear the intent of Article 1, which distinguishes between militias and volunteer corps that form part of the regular armed forces from those that do not. If the intention had been to apply the four conditions to all combatants, the last sentence of Article 1 would be superfluous.

1                  Id. at 466.  The proposed definition differed slightly from Article 1 of the Hague Regulations Concerning the Laws and Customs of War, 1907.

2                   2 FINAL RECORD, supra note 47, at 467.

3                  Id. (emphasis added).

language that eventually became GPW Article 4, subpara-eventually resolved the argument by including resistance graphs (A)(1) and (2).⁵⁷ One further point about GPW elimi-movements in Article 4(A)(2) only, demonstrating a stark dis­nates any remaining doubt regarding the drafters’ intent to tinction between Article 4(A)’s two subparagraphs.⁶¹ apply the Hague four conditions to Article 4(A)(2) and not to Article 4(A)(1)—the final form of Article 4 includes organized The Special Committee reported that “to avoid any possibil­resistance movements in subparagraph (A)(2) and excludes ity of misunderstanding, . . . sub-paragraphs (A)(1) and (A)(2) them from subparagraph (A)(1).⁵⁸ were created to divide regular armed forces and their constitu­

ent volunteer corps and militias from independent forces[,] including resistance movements[,] and to apply the Hague con-

b. The Drafters’ Treatment of Organized Resistance Move-ditions to the latter.”⁶²  That decision must be analyzed in light ments Demonstrates Their Intent to Distinguish Regular Armed of the considerable opposition to permitting resistance move-

Forces, and Their Constituent Militia and Volunteer Units, ments to claim POW status,⁶³ and the ultimate compromise that from Independent Forces  included them in the newly devolved subparagraph (A)(2).

In the initial draft of GPW (the Stockholm Draft), POWs The debate on this issue is found in the discussion of pro-were those persons “belonging to a military organization or to posed amendments to the Stockholm Draft.  Particularly infor­an organized resistance movement constituted in occupied ter-mative is a United Kingdom proposal⁶⁴ to apply the Hague ritory,” provided they met the four Hague conditions, and that conditions to “partisans” and to “members of armed forces they “notified the occupying Power of [their] participation in including militia or volunteer corps,” which the other delega­the conflict.”⁵⁹  This language caused such controversy that a tions unanimously rejected.⁶⁵  The principal concern seems to Special Committee was appointed to consider it.⁶⁰  The drafters have been command and control. The United Kingdom then

1                  Id.

2