The Logical Nexus Between The Decision To Deny Application of The Third Geneva Convention To The Taliban and al Qaeda

The Logical Nexus Between The Decision To Deny Application of The Third Geneva Convention To The Taliban and al Qaeda, and the Mistreatment of Prisoners in Abu Ghraib

Evan J. Wallach

Judge, United States Court of International Trade. Adjunct Professor, Law of War,Brooklyn Law School, George Mason Law School, New York Law School. Visiting Professor,Law of War, University of Münster. Webmaster ILOWA Home Page, www.lawofwar.org. J.D.Berkeley, 1976, LLB (international law) Cambridge, 1981. The author’s interest in the issueshere discussed springs, in part, from his service as an Attorney/Advisor in the InternationalAffairs Division of the Office of TJAG during the Persian Gulf War working in, inter alia,prisoner of war and war crimes issues. This article is respectfully dedicated to my mother, SaraFlorence Rothaus Wallach. In answer to Cain’s question, Genesis 4:9, so many times she told us,“You are your brother’s keeper.” The author, as a Judge Advocate in the Nevada National Guardfrom 1989 through 1995, used those words in briefing the 72^nd Military Police Company on thelaws of war. About the 72^nd the Final Report of the Independent Panel to Review DoD DetentionOperations, August, 2004, [hereinafter Schlesinger Committee Report] noted:

When Abu Ghraib opened, the first MP unit was the 72^nd MP Company, based inHenderson, Nevada. Known as “the Nevada Company” it has been described bymany involved in investigations concerning Abu Ghraib as a very strong unit thatkept tight rein on operational procedures at the facility. The company called intoquestion the interrogation practices of the MI Brigade regarding nakedness ofdetainees. The 72^nd MP Company voiced and then filed written objections to thesepractices.

Id at 74.

To those citizen soldiers this article is also dedicated, with pride and respect.

The author also wishes to thank Charles Gittings for his excellent web site devoted toenforcement of the Geneva Conventions. http://pegc.no-ip.info/. His extensive efforts made thisresearch much easier. The views here expressed represent those only of the author and not of anyperson with whom, or entity with which, he is affiliated.

Our values are non-negotiable for members of our profession. They are what a professional military force represents to the world.

AR 15-6 Investigation of the Abu Ghraib Prison and 205^th Military Intelligence Brigade,LTG Anthony R. Jones at Assessments as the Senior Military Officer (f) Training, p. 23.

Those who do battle with monsters must take care that they do not thereby become a monster. Always remember that when you gaze into the abyss, the abyss gazes back into you.

Freidrich Nietzsche , Jenseits von Gut and Böse, IV 146.

Introduction

Revelations of sexual indecencies committed by United States military personnel against Iraqi prisoners in Abu Ghraib prison,

An Article 15-6 Report by MG Antonio Taguba characterized them as “...numerousincidents of sadistic, blatant, and wanton criminal abuses...inflicted on several detainees.”between October and December, 2003. Article 15-6 Investigation of the 800^th Military PoliceBrigade, http://www.globalsecurity.org/intell/library/reports/2004/800-mp-bde.htm [hereinafterTaguba Report]. Finding of Fact 5.He concluded that they constituted “grave breaches ofinternational law.” Id at Conclusion.

and allegations of other misconduct, followed by repeated leaks of documents related to the decision making process regarding the status of captured enemy combatants, forced the release at least some addition documents relating to that issue [hereinafter the government memos]. Taken as a whole, those documents, as well as other known facts, and applicable law, demonstrate that 1) the legal, and perhaps, the factual basis for classification of many Afghan prisoners outside the Third Geneva Convention appears flawed; 2) treatment of persons entitled to the rights of prisoners of war in ways forbidden by the Third Geneva Convention appears to be neither inadvertent nor incidental; and 3) the application of those coercion methods to the Abu Ghraib prisoners appears to be related, to the sexual misconduct by prison guards.

This article examines the international law aspects of the determination by the United States government that Guantanamo detainees, and indeed all members of the Taliban

That includes those held and questioned in Afghanistan without transportation toGuantanamo.

, are unprotected by the Third Geneva Convention of 1949

As “The Third Geneva Convention of 1949 relative to the Treatment of Prisoners ofWar [hereinafter the Third Geneva Convention or GC3]. As a stylistic convention Britishspellings from the English language version of the conventions has been changed to theAmerican.

. The government memos

And other information released as a result, in, for example press reports and Red Crossreports. See discussion infra. at VI(A)(2).

demonstrate that the government based its decision on a finding that either the Taliban was not the de facto government of Afghanistan, and that as a result its military forces were unprotected by GC3, or on a finding that it was the defacto government, but that its forces were unprotected for failure to meet certain purported “requirements” of Article 4 (2) of the Third Geneva Convention.. The article discusses the requirements of Article 5 of GC3 which provides that should “any doubt exist” as to the status of a captured person, a presumption of POW status continues until a decision to the contrary has been made by a “competent tribunal”. The article examines the government memos and other recent information to demonstrate that reasonable doubt does exist as to at least Taliban

Al Qaeda detainees present a different question. Their only potential claim to protectedstatus is if, they were in fact, acting as part of the Taliban when captured. The issue, dependingon individualized facts such as the place, time and manner of capture, might or might not presentan issue for resolution before a competent tribunal. This article does not examine otherarguments which an al Qaeda detainee might assert regarding the legality of interrogationtechniques, if that detainee is not a prisoner of war. See, e.g. the Convention Against Torture andOther Cruel, and Inhuman or Degrading Treatment of Punishment, entry into force 26 June 1987,in accordance with article 27 (1), http://www.unhchr.ch/html/menu3/b/h_cat39.htm. [hereinafterthe Torture Convention].

detainees’ status, and that because they have not, to date, been screened by a competent tribunal, they continue to be entitled to treatment as POWs. The article also examines the interrogation methods used to question those detainees and concludes that 1) as to protected persons the methods constitute a breach, in some instances a grave one, of the Third Geneva Convention and 2) that the determination POW status did not apply appears to have been driven by a desire to use those interrogation techniques to obtain information from battlefield detainees in a manner unpermitted by the Convention, and to admit that information in trial proceedings using procedural and evidentiary rules forbidden by GC3.

Finally, the article analyzes the development of those interrogation methods, their migration to Iraq, and their application to prisoners at Abu Ghraib. It determines that the sexual misconduct by the Abu Ghraib prison guards, while not necessarily ordered or directed by higher authority, was an evolution reasonably foreseeable from the violations of GC3 already in place. Finally, the article concludes that many of the extraordinary interrogation methods, as applied, may constitute breaches of both domestic and international law, depending on the facts of each detainee’s case.

Background

Following the 11 September, 2001, attacks on the World Trade center and the Pentagon the President of the United States immediately characterized those strikes as “an act of war.”

⁹ BBC News Online, Bush Calls Attacks “Acts of War” (Sept. 12, 2001), athttp://news.bbc.co.uk/hi/english/world/americas/newsid_1537000/1537534.stm.

The United States took swift military action against the perpetrators; members of al Qaeda, an international terrorist organization. President Bush, demanded that Afghanistan’s ruling party, the Taliban, turn members of al Qaeda over to American custody.

¹⁰ Id.

On 18 September 2001, in a joint resolution, Congress, without declaring war, authorized military action against the Taliban.

¹¹ S.J. Res. 23, 107th Cong. (2001) (enacted as Pub. L. No. 1-7-40, 115 Stat. 224). In a furtherresponse 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.

By the end of September, the United Nations Security Council had also adopted two resolutions which (1) identified the attacks on the United States as a threat to international peace and security; and (2) mandated that states “[d]eny safe haven to those who finance, plan, support, or commit terrorist acts.”

¹² 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).

On 7 October, with the consent of countries surrounding Afghanistan, the United States began extensive air attacks on the Taliban military infrastructures and the al Qaeda terrorist organization.

¹³ Bush Announces Opening of Attacks (Oct. 7, 2001), available athttp://www.cnn.com/2001/US/10/07/ret.attack.bush.

On October 17, the commander of CENTCOM issued an order instructing that the Geneva Conventions were to be applied to all captured individuals in accordance with their traditional interpretation.

Thus, “Belligerents would be screened to determine whether or not they were entitled toprisoner of war status. If an individual was entitled to [POW] status the protections of GenevaConvention III would apply. If armed forces personnel were in doubt as to a detainedindividual’s status, [GC3] rights would be accorded to the detainee until a [GC3] Article 5tribunal made a definitive status determination.” Schlesinger Committee Report at p.80.

By 21 December 2001, the allied coalition held in custody about seven thousand suspected al Qaeda and Taliban members in Afghanistan.

¹⁵ US Questions 7,000 Taliban and al-Qaeda Soldiers, Guardian (Dec. 21, 2001), available athttp://www.guardian.co.uk/afghanistan/story/0,1284,623701,00.html.

On 13 November, 2001, President Bush issued a Military Order providing for the trial before military tribunals of non-U.S. citizens who were members or culpable supporters of al Qaeda.

See http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html.

In January, 2002, following a screening process a number of those prisoners identified by the United States as particularly interesting were transferred to a prison on the U.S. military base at Guantanamo Bay, Cuba. By mid 2004, approximately 640 such prisoners were held at that base.

Rasul v. Bush, 124 S.Ct. 2686, 2690 (2004).

On April 27, 2004, CBS’s Sixty Minutes broadcast the first photographs showing prisoner abuse by American personnel at Abu Ghraib prison.

http://www.cbsnews.com/stories/2004/04/27/60II/main614063.shtml.

In early May, 2004 the New Yorker Magazine published an article by Seymour Hersh

Seymour Hersh, Torture at Abu Ghraib, New Yorker, May 10, 2004,http://www.newyorker.com/fact/content/?040510fa_fact.

revealed the existence of an internal Army report authored by Major General Antonio M. Taguba.

http://www.msnbc.msn.com/id/4894001/. Indexes to the Taguba Report were obtainedby the media at a later date.http://www.usnews.com/usnews/issue/040719/usnews/19prison.b.htm

According to Hersh:

Taguba found that between October and December of 2003 there were numerous instances of “sadistic, blatant, and wanton criminal abuses” at Abu Ghraib. This systematic and illegal abuse of detainees, Taguba reported, was perpetrated by soldiers of the 372nd Military Police Company, and also by members of the American intelligence community. (The 372nd was attached to the 320th M.P. Battalion, which reported to [BG Janice] Karpinski’s brigade headquarters.) Taguba’s report listed some of the wrongdoing:

1. Breaking chemical lights and pouring the phosphoric liquid on detainees; pouring cold water on naked detainees; beating detainees with a broom handle and a chair; threatening male detainees with rape; allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell; sodomizing a detainee with a chemical light and perhaps a broom stick, and using military working dogs to frighten and intimidate detainees with threats of attack, and in one instance actually biting a detainee.

There was stunning evidence to support the allegations, Taguba added—“detailed witness statements and the discovery of extremely graphic photographic evidence.” Photographs and videos taken by the soldiers as the abuses were happening were not included in his report, Taguba said, because of their “extremely sensitive nature.”

New Yorker, May 10, 2004. Follow-up articles on May 17

Seymour Hersh, Chain of Command, New Yorker, May 17, 2004, http://www.newyorker.com/fact/content/?040517fa_fact2.

and May 24, 2004

Seymour Hersh, The Gray Zone, New Yorker, May 10, 2004,http://www.newyorker.com/fact/content/?040524fa_fact. Hirsch, citing the Taguba Report,wrote that Major General Geoffrey Miller, the commander of the detention and interrogationcenter at Guantanamo, “urged that the commanders in Baghdad change policy and place militaryintelligence in charge of the prison.” The report quoted Miller as recommending that “detentionoperations must act as an enabler for interrogation.” Hirsh said that Miller “...briefed militarycommanders in Iraq on the interrogation methods used in Cuba—methods that could, withspecial approval, include sleep deprivation, exposure to extremes of cold and heat, and placingprisoners in “stress positions” for agonizing lengths of time. (The Bush Administration hadunilaterally declared Al Qaeda and other captured members of international terrorist networks tobe illegal combatants, and not eligible for the protection of the Geneva Conventions.).”

Following the first Hirsch article a stream of leaked photographs and memoranda became a torrent. The materials eventually included provision to Congress of disks containing thousands of sexually explicit photographs depicting sexual abuse of Iraqi prisoners

http://www.capitolhillblue.com/artman/publish/article_4521.shtml.

, as well as memoranda drafted by personnel in the White House and the Departments of Justice and State

See discussion, infra. Section III.

. The Bush administration, including the White House, specifically and repeatedly disavowed the use of sexual abuse as a means of interrogation, and claimed it had never authorized the use of torture to interrogate prisoners

http://www.washingtonpost.com/wp-dyn/articles/A60719-2004Jun22.html.

. The leaked memoranda, combined with other known facts, tell a more convoluted, complicated and nuanced tale.

What follows is a progression of legal rationales which seem to have originated with the decision to try certain captured prisoners before military tribunals, then dealt with objections, based on the Third Geneva Convention, to those tribunals by a Presidential determination that captured members of al Qaeda and the Taliban were uncovered illegal combatants, and then determined that because those individuals were outside the Convention they could be interrogated through means prohibited by its terms. It appears that it was the application of those legal rationales, and the Geneva prohibited interrogation techniques they approved, which eventually resulted in the abuses of Abu Ghraib.

III

The Bush Administration’s Path to Determination of POW Status

What follows is a chronological paper trail. For the ease of the reader, the two central analytical memoranda, the Yoo/ Delahunty Memorandum of 9 January, 2002, and the Bybee Memorandum of 22 January, 2002, are more fully discussed and analyzed at the end of this section.

On 13 November, 2001, President Bush issued his military tribunal Order.

See http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html. That Orderprovides, in part, that individuals subject to the order include current or past members of alQaeda, individuals who “...engaged in, aided or abetted, or conspired to commit, acts ofinternational terrorism, or acts in preparation therefor...” which adversely affected wide UnitedStates interests, or who “...has knowingly harbored one or more individuals” described above.Order at Section 2(A).

That Order, and subsequent statements by the President

On November 19, President Bush said that the nation was fighting “against the mostevil kinds of people, and I need to have that extraordinary option at my fingertips.” New YorkTimes, 20 November, 2001, Section B, page 5.

, Vice President

Vice President Dick Cheney, responding to question following a speech to the UnitedStates Chamber of Commerce on 14 November, 2001, “...spoke favorably of World War IIsaboteurs being ‘executed in relatively rapid order’ under military tribunals set up by PresidentFranklin D. Roosevelt....A military tribunal, he said, ‘guarantees that we’ll have the kind oftreatment of these individuals that we believe they deserve.’” New York Times, 15 November,2001, Section B, page 6.

, Attorney General

According to the Attorney General, “Foreign terrorists who commit war crimes againstthe United States, in my judgment, are not entitled to and do not deserve the protections of theAmerican Constitution, particularly when there could be very serious and important reasonsrelated to not bringing them back to the United States for justice. I think it’s important tounderstand that we are at war now.” New York Times, 15 November, 2001, Section A, page 1.

, Secretary of Defense

“[Secretary of Defense] Rumsfeld acknowledged that the rules for military tribunalswould be decidedly differently [sic] from those for civilian trials. And Pentagon officials saidtoday that they were devising regulations that were likely to include a more flexible standard forevidence than civilian trials would accept. They said the tribunals would probably allow aconviction of a suspected terrorist on a two-thirds vote of the officers on the panel.” New YorkTimes, 16 November, 2001, Section B, page 10. The Military Order itself, provided for“sentencing only upon the concurrence of two-thirds of the members of the commission presentat the time of the vote, a majority being present...” Military Order at Sec.4(c)(7).

, and the White House Counsel

At a meeting of the American Bar Association’s Standing Committee on Law andNational Security, White House Counsel Alberto Gonzales acknowledged nearly identicalprovisions in the two orders. Inter Arma Silent Leges: In Times of Armed Conflict Should theLaws be Silent?, Committee on Military Affairs and Justice of the Association of the Bar of theCity of New York (2001) at FN 67 available at www.abcny.org.

made it clear that the tribunals were intended to follow procedural and evidentiary rules similar to those used to try spies and war criminals during and after the Second World War.

The New York Times quoted “A Bush administration official with knowledge of theplanning said officials had been studying the world War II cases.” New York Times, 15November, 2001, Section B, page 6. “...as one White House official put it, ‘it’s a new reality.’The old rules, the old legal and ;law enforcement cultures, have to change officials argue...” NewYork Times, 18 November, 2001, Section A, page 1. According to the Times, “The incident thatwas uppermost on the minds of Bush administration officials in setting up tribunals took place inJune 1942, when Nazi Germany dispatched eight saboteurs to this country to blow up warindustries...” New York Times, 18 November 2001, Section A, page 1. That incident, of courseresulted in the military commission procedures tested in Ex Parte Quirin. “‘The commissionitself is going to be unique,’ said one military officer involved in the discussions. ‘It will beseparate and distinct from a civilian criminal trial. It will be separate and distinct from a court-martial.’” New York Times, 25 November, 2001, Section A, page 1.

Those WW II rules included a rule of evidence first articulated in the 1942 military commission trial of eight German saboteurs, United States v. Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942), see also, Louis Fisher, Nazi Saboteurs On Trial, 52-53, (University Press of Kansas, 2003), which provides that “Such evidence shall be admitted as would, in the opinion of the President of the Commission, have probative value to a reasonable man. “ Section 4(c)(3) of the Bush Order provided for “admission of such evidence as would, in the opinion of the presiding officer of the military commission ...have probative value to a reasonable person.” That rule, as applied in World War Two and in the post-war tribunals was repeatedly used to admit evidence of a quality or obtained in a manner which would make it inadmissible under the rules of evidence in both courts of the United States or courts martial conducted by the armed forces of the United States.

See, Wallach The Procedural and Evidentiary Rules of the Post World War II WarCrimes Trials: Did They Provide an Outline for International Legal Procedure?, 37 ColumbiaJournal of Transnational Law 851 (1999); and Wallach, Afghanistan, Quirin and Uchiyama:Does the Sauce Suit the Gander?, The Army Lawyer, (November, 2003).

Eventually, the rules under which tribunals are to be conducted were substantially modified retaining only the World War II evidence rule and a limited appellate process. Ibid. To date, no memorandum has been released by the Bush administration detailing the reason for retaining those two rules. It is a not unreasonable conclusion that the rules were promulgated and retained with the specific intention of admitting evidence obtained through means which would require their exclusion under the Federal Rules of Evidence and applicable constitutional authority which prohibits or limits the use of illegally obtained evidence.

See, Wallach, Afghanistan, Quirin and Uchiyama: id. See, Miranda v. Arizona, 384U.S. 436, 442, 86 S.Ct. 1602, 1611, (1966) and its progeny. “Over 70 years ago, ourpredecessors on this Court eloquently stated: 'The maxim 'Nemo tenetur seipsum accusare,' hadits origin in a protest against the inquisitorial and manifestly unjust methods of interrogatingaccused persons, which (have) long obtained in the continental system, and, until the expulsionof the Stuarts from the British throne in 1688, and the erection of additional barriers for theprotection of the people against the exercise of arbitrary power, (were) not uncommon even inEngland. While the admissions or confessions of the prisoner, when voluntarily and freely made,have always ranked high in the scale of incriminating evidence, if an accused person be asked toexplain his apparent connection with a crime under investigation, the ease with which thequestions put to him may assume an inquisitorial character, the temptation to press the witnessunduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap himinto fatal contradictions, which is so painfully evident in many of the earlier state trials, notablyin those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system soodious as to give rise to a demand for its total abolition. The change in the English criminalprocedure in that particular seems to be founded upon no statute and no judicial opinion, butupon a general and silent acquiescence of the courts in a popular demand. But, however adopted,it has become firmly embedded in English, as well as in American jurisprudence. So deeply didthe iniquities of the ancient system impress themselves upon the minds of the American coloniststhat the States, with one accord, made a denial of the right to question an accused person a part oftheir fundamental law, so that a maxim, which in England was a mere rule of evidence, becameclothed in this country with the impregnability of a constitutional enactment.' Brown v. Walker,161 U.S. 591, 596--597, 16 S.Ct. 644, 646, 40 L.Ed. 819 (1896). “ See, Working Group Reporton Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical,Policy and Operational Considerations, 4 April, 2004, at p.66.http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf. [hereinafter Working GroupReport]. N.B. That Report differs to a very large degree from the initial draft report dated 6March. 2004. http://www.ccr-ny.org/v2/reports/docs/PentagonReportMarch.pdf. Citationsherein are to the Final Report.

On January 18, 2002, President Bush (the decision is referenced

"On January 18, I advised you that the department of Justice had issued a formal legalopinion concluding that the Geneva Convention III on the Treatment of Prisoners of War(GPWIII) does not apply to the conflict with al Qaeda. I also advised that the DOJ’s opinionconcludes that there are reasonable grounds for you to conclude that GPW does not apply withrespect to the conflict with the Taliban. I understand that you decided that GPW does not applyand accordingly that al Qaeda and Taliban detainees are not prisoners of war under the GPW."Gonzaelz Memo, 25 January, 2002. http://msnbc.msn.com/id/4999148/site/newsweek/. See,Bush Says No POW Status For Detainees, CNN, January 28, 2002.http://www.cnn.com/2002/US/01/28/ret.wh.detainees/.

in the Gonzales Memo of 25 January, 2002) made a presidential decision that captured members of Al Quaeda and the Taliban were unprotected by the Geneva POW Convention. That decision was preceded by a Memorandum dated January 9, 2002, submitted to William J Haynes II, General Counsel to the Department of Defense, by the Department of Justice's Office of Legal Counsel (which provides legal counsel to the White House and other executive branch agencies) and written by Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty.

The Yoo Delahunty Memorandum of January 9, 2002

The Yoo/Delahunty Memorandum, along with the Bybee Memo, provided the analytical basis for all which followed regarding blanket rejection of applicability of the Third Geneva Convention to captured members of al Qaeda and the Taliban. Its validity is, accordingly, analyzed in some detail at the end of this discussion.

The Rumsfeld Order January 19, 2002

In a Memorandum dated 19 January, 2002

http://www.defenselink.mil/news/Jun2004/d20040622doc1.pdf.

, Secretary of Defense Donald Rumsfeld ordered the Chairman of the Joint Chiefs of Staff to inform combat commanders that "Al Quaeda and Taliban individuals...are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949." He ordered that "commanders should "...treat them humanely, and to the extent appropriate and consistent with military necessity, consistent with the Geneva Conventions of 1949." That order thus gives commanders permission to depart, where they deem it appropriate and a military necessity, from the provisions of the Geneva Conventions. The Memorandum was promulgated as an order by the Joint Chiefs of Staff on the same date.

http://www.defenselink.mil/news/Jun2004/d20040622doc2.pdf.

The Bybee Memorandum of 22 January, 2002

The Bybee Memo, Memorandum of 22 January, 2002 from Jay Bybee, Office of Legal Counsel for Alberto R. Gonzales, Counsel to the President and William J. Haynes II, General Counsel of the Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees , follows the same structural pattern, and sometimes the exact phrasing, as the Yoo/Delahunty Memo, but with additional analysis of certain international law/ law of war issues. Parts of it are also discussed below.

The Alberto Gonzales Memo January 25, 2002

On January 25, 2002, White House Counsel Alberto Gonzales sent a Memorandum [hereinafter the Gonzales Memo] to President Bush regarding a presidential decision on January 18, 2002, (the White House had issued an Order to that effect, dated February 7, 2002, see below) that captured members of the Taliban were not protected under the Geneva POW Convention ("GPW"), to which the legal advisor to the Secretary of State had objected

http://msnbc.msn.com/id/4999363/. Secretary of State Powell argued vigorously thatfailure to apply the Geneva POW Convention to the Taliban as a group reversed long-standingU.S. policy and would adversely affect the nation’s standing in the international arena. Hisprojections of potential issues, including legal problems, proved to be substantially accurate.

. He advised that "there are reasonable grounds for you to conclude that GPW [the ] does not apply ...to the conflict with the Taliban." Mr. Gonzales argued that grounds for the determination might include:

1) a determination that Afghanistan was a failed state "...because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations" (see definition of statehood in Cpt. 1.3 and discussion in Kadic v. Karadzic, 70 F.3d 232, 244 to 245 (2nd Cir, 1995) ) and/or

2) a "determination that the Taliban and its forces were, in fact, not a government but a militant, terrorist-like group."

Mr. Gonzales then identified what he believed were the ramifications of Mr. Bush's determination. On a positive note he felt they preserved flexibility stating that:

The nature of [a "war" against terrorism] places a high premium on ...factors such as the ability to quickly obtain information from captured terrorists and their sponsors ... and the need to try terrorists for war crimes... [t]his new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners...

Here are some thoughts on the validity of the 1929 Geneva Convention by the ProvostMarshal General of the United States Army, Maj. Gen. Archer Lerch in 1945. Although theyaddress the 1929 Geneva convention, they seem relevant to arguments about obsolescence.

The War Department has followed strictly the terms of this treaty in all the ordersand directives that it has issued governing the treatment of prisoners of war. And Ido not believe that any thoughtful person would have the War Department dootherwise.

The Geneva Convention, I might emphasize is law. Until that law ischanged by competent authority, the War Department is bound to follow it.

* * * * * * *

That treaty, like other laws, can be changed but it cannot be changed bythe War department’s regarding it as a “scrap of paper.” Such an attitude on thepart of the War department would mean that our government is no more honestthan others it severely condemned. It would mean that this government hadsacrificed the place of honor and moral leadership that it has earned in the eyes ofthe world and had suck to the level of Japan whose emissaries talked peace whileits army went to war.

I do not intend to indicate that I think the Convention should be changed. Ido not think that any of us are now emotionally fitted to tackle the job of re-evaluating one of the few international laws that has withstood, with aconsiderable measure of success, the hatred and lawlessness that war breeds.

Lerch, The Army Reports on POWS, The American Mercury, May, 1945, pp. 536-547.

He also believed the determination "...eliminates any argument regarding the need for case-by-case determinations of POW status." The determination, Mr. Gonzales said, also reduced the threat of domestic prosecution under the War Crimes Act (18 U.S.C. 2441). His expressed concern was that certain GPW language such as "outrages upon personal dignity" and "inhuman treatment" are "undefined' and that it is difficult to predict with confidence what action might constitute violations, and that it would be "...difficult to predict the needs and circumstances that could arise in the course of the war on terrorism." He believed that a determination of inapplicability of the GPW would insulate against prosecution by future "prosecutors and independent counsels."

Mr. Gonzales then identified the counter arguments from the Secretary of State (See, Colin Powell Memo of January 26, 2002) which included:

See also, William H. Taft, IV, Memorandum to Counsel to the President, Comments onYour Paper on the Geneva Convention, February 2, 2002, “The President should know that adecision that the Conventions do apply is consistent with the plain language of the Conventionsand the unvaried practice of the United States in introducing its forces into conflict over fiftyyears.” http://www.fas.org/sgp/othergov/taft.pdf.

Past adherence by the United States to the GPW;

Possible limitations on invocation by the U.S. of the GPW in Afghanistan;

Likely widespread condemnation by allied nations;

Encouragement of potential enemies to find "loopholes" to not apply the GPW;

Discouraging turn-over of terrorists by other nations;

Undermining of U.S. military culture "which emphasizes maintaining the highest standards of conduct in combat..."

In response, Mr. Gonzales says, inter alia, "...even if the GPW is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel." He adds that, "...the argument based on military culture fails to recognize that our military remains bound to apply the principles of GPW because that is what you have directed them to do." (Emphasis added). In light of subsequent events, that last sentence is of particular interest.

The Ashcroft Letter of February 1, 2002

On February 1, 2002, Attorney General John Ashcroft sent President Bush a letter

http://news.findlaw.com/wp/docs/torture/jash20102ltr.html.

which strongly indicates the administration’s consideration of conduct which might violate the Third Geneva Convention. Mr. Ashcroft articulated two possible theories to support the conclusion that the protection of POWs under the Geneva Convention did not apply. The first was the failed state theory holding that Afghanistan was not a party to the treaty; the second an argument that although the Convention applied, the Taliban were not entitled to POW status because they acted as unlawful combatants. In arguing for the first option, made through a Presidential determination that Afghanistan was a failed state, Mr. Ashcroft stated:

Thus, a Presidential determination against treaty applicability would provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct or interrogation of detainees. The War Crimes Act of 1996 makes violation of parts of the Geneva Convention a crime in the United States.

(Emphasis added).

Attorney General Ashcroft’s letter seems to make it clear that by the end of January, at least, consideration was being given to conduct which might violate GC3's strictures regarding the detention and interrogation of prisoners of war.

The Presidential Order of February 7, 2002

On February 7, 2002

The Schlesinger Committee Report notes that before Mr. Bush signed that Order theLegal Advisor to the Chairman, Joint Chiefs of Staff, and “many of the military serviceattorneys” had agreed with the Department of State’s position that “the Geneva Conventions intheir traditional application provided a sufficiently robust legal construct under which the GlobalWar on Terror could effectively be waged.” Id at 7. At the February 4, 2002, National SecurityCouncil meeting called to decide this issue, the department of State, the department of Defense,and the Chairman of the Joint Chiefs of Staff were in agreement that all detainees would get thetreatment they would be entitled to under the Geneva Conventions. Id 34.

, President Bush signed an Order

http://www.cnn.com/2004/images/06/22/bush.memo.pdf.

, accepting the reasoning of the Yoo Bybee and Gonzales memos and the Attorney General’s letter

The Presidential Memorandum was directed to Vice President Richard Cheney,Secretary of State Colin Powell, Secretary of Defense Donald Rumsfeld, Attorney John GeneralAshcroft, CIA Director George Tenet, Presidential Chief of Staff Andrew Card, NationalSecurity Advisor Condoleezza Rice, and Joint Chiefs Chair Richard Myers. It referred to “...ourrecent extensive discussions regarding the status of al Qaeda and Taliban detainees,” and notedthe discussions confirmed that application of the Third Geneva Convention to the detainees“involves complex legal questions.”

, and validating the order issued by Secretary Rumsfeld on January, 19, 2002.

Discussing the announcement of the Presidential Order, Secretary Rumsfeld said thatWhite House lawyers thought long and hard about the situation before making recommendations.The lawyers were worried about the precedent their decision could set about detainees in futureconflicts, he added. "Prudence dictated that the U.S. government take care in determining thestatus of Taliban and Al Qaeda detainees...When the Geneva Convention was signed in 1949, itwas crafted by sovereign states to deal with conflicts between sovereign states."

The current war on terrorism is not a conflict envisioned by the framers of the GenevaConvention, he said. Rumsfeld stressed that from the beginning, U.S. forces have treated allTaliban and Al Qaeda detainees humanely. He issued an order in January mandating all detaineesbe treated in a manner consistent with the Geneva Convention. "Notwithstanding the isolatedpockets of international hyperventilation, we do not treat detainees in any other manner than amanner that is humane," Rumsfeld said.

Jim Garamone, Rumsfeld Explains Detainee Status, American Forces Information Service, 8 Feb.2002, http://www.defenselink.mil/news/Feb2002/n02082002_200202086.html.

That Presidential Order

The Presidential Order of 7 February was somewhat nuanced. In reliance on the BybeeMemo of 22 January, and the Ashcroft Letter of 1 February, it determined that al Qaeda wasuncovered by the Geneva Conventions because it is not a party to them. As to the Taliban itaccepted that the President had constitutional authority to suspend applicability of the GenevaConventions to Afghanistan but declined to do so “at this time.” Instead, “...based on the factssupplied by the Department of Defense and the recommendation of the Department of Justice” itdetermined that the Taliban detainees were “unlawful combatants and therefore do not qualify asprisoners of war under Article 4 of Geneva.”Sic.

The Order did not clarify the basis for that unlawful combatant finding, but it could onlyhave been made by the President on a finding that while Afghanistan was still a party to theTreaty, the Taliban were not the de facto government of Afghanistan. As to other claims ofirregularity in uniforms, conduct, and leadership, they clearly do not apply to the regular armedforces of a signatory power, and accordingly could not be, as a matter of law, the basis for aPresidential determination of non applicability. See, Hays Parks: Special Forces Wear of Non-Standard Uniforms, 4 Chi. J. Int'l L. 493, See also, Evan Wallach, Afghanistan, Quirin andUchiyama: Does the Sauce Suit the Gander?, The Army Lawyer, (November, 2003). But see,John Yoo and James Ho, The Status of Terrorists, 44 VA. J. Int’l L. 207 (Fall 2003) [hereinafterYoo and Ho] which argues to the contrary based on a misreading of the intent of the draftersThird Geneva Convention regarding application of the four part test of Article 4 (2) to regulararmed forces of a signatory power under Article 4 (2). That intent is unquestionably found in thetraveaux preparatoire of GC3. See, Wallach, Afghanistan, Quirin and Uchiyama, id. at I (B) (1)(b).

A Fact Sheet issued by the White House on February 7, 2002, does contain a statementthat:

Although we never recognized the Taliban as the legitimate Afghan government,Afghanistan is a party to the Convention, and the President has determined thatthe Taliban are covered by the Convention. Under the terms of the GenevaConvention, however, the Taliban detainees do not qualify as POWs.

White House Fact Sheet, February 7, 2002,http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html.

How the United States intended that Fact Sheet to be interpreted is facially unclear. Asnoted above, apparently, it meant the Third Geneva Convention was applicable to Afghanistan,but not to the Taliban either because 1) they were the government of a failed state, or 2) theyfailed to meet the requirements of Article 4(2). In either case, it appears erroneous.

Interestingly, the Fact Sheet also states that “The detainees will not be subjected tophysical or mental abuse or cruel treatment.” Id. Eventually, that statement apparently becameinoperative.

was the basis for all following actions which simply took as a given

As the process was explained by Lawrence Di Rita, a Department of DefenseSpokesperson:

...we’ve been quite clear that the president had determined that the conflictwith al Qaeda was not subject to the Geneva Conventions and that the conflictwith the Taliban, while it was subject to the Geneva Conventions, people pickedup as Taliban would be considered unlawful enemy combatants because we’vehad a character of how they fought....So this was the character of the people whowere in Guantanamo, not prisoners of war, but unlawful enemy combatants andknown al Qaeda terrorists. And it was on that basis that what ultimately becamethe procedures that General Miller has now talked to at some length weredeveloped...

http://www.defenselink.mil/transcripts/2004/tr20040520-0788.html.

that the Third Geneva Convention was inapplicable to any Guantanamo detainee.

The assumption persists unquestioned. Thus, for example, the Schlesinger CommitteeReport, discussing the laws of war and the Geneva Conventions simply accepts that “As a resultof a Presidential determination, the Geneva Conventions did not apply to al Qaeda and Talibancombatants. Schlesinger Committee Report at 79.

Military Commission Order No. 1, 21 March, 2002

On 21 March, 2002, the Secretary of Defense issued Military Commission Order No.1

See, http://www.cdt.org/security/usapatriot/020321militaryregs.pdf.

which prescribed procedures under the President’s Military Order. While Commission Order 1 finessed the Presidential Order’s two/third’s sentencing requirement

It provides that “An affirmative vote of two-thirds of the members is required todetermine a sentence, except that a sentence of death requires a unanimous, affirmative vote ofall the members.”Military Commission Order No.1, Sec. 6(F).

it retained the World War II evidentiary rule and failed to provide a system of independent appeals.

From the sequence of events, and discussion by White House Counsel, it appears fairly clear that the decision by Mr. Bush, and the subsequent orders from Mssr.s Bush and Rumsfeld, were based on the Yoo/Delahunty Memorandum of 9 January, 2002 and the Bybee Memo of January 22., 2002. A close analysis of those documents is accordingly appropriate.

The Yoo/Delahunty Memo January 9, 2002

This Memorandum is written in four parts. The first examines the 18 U.S.C. Section 2441, the War Crimes Act, and some of the treaties it implicates. The second part examines whether members al Qaeda can claim protection of the Geneva Conventions and concludes they can not. The third portion examines application of those treaties to members of the Taliban. It concludes nonapplicability because 1) it says "the Taliban was not a government and Afghanistan was not...a functioning State", 2) "the President has the constitutional authority to suspend our treaties with Afghanistan pending restoration of a legitimate government", and 3) "it appears...that the Taliban militia may have been ...intertwined with Al Qaeda" and thus on the same legal footing. Finally, the fourth part concludes that customary international law does not bind the President or restrict the actions of the United States military [under a constitutional analysis].

The Memorandum is questionable on many grounds. Its central operative flaw, however, from the viewpoint of international law, is that as long as there is a genuine issue of fact or law

The author suggests the fact or law standard of Fed. R. Civ. P. 56 because it is one withwhich American courts and lawyers have considerable experience. The any “doubt language”might constitute an even higher barrier to a non-determination of POW status, but the author issatisfied that existing facts and statements of opposition by officials of the United StatesGovernment are sufficient to meet test of the Rule 56. See, e.g. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 249 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 324-325 (1986).

regarding the status of captured individual combatants who are members of the Taliban or Al Qaeda, the Third Geneva Convention of 1949 must apply, until properly otherwise determined. Article 5 of that Convention provides, in part, that "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (Emphasis added).

The key to whether there exists any genuine issue of fact or law resides in the Yoo/Delahunty Memo itself, which is the authoritative basis for all the actions which follows. Leaving aside the Memo’s American constitutional arguments

The Yoo/Delahunty and Bybee Memos argue at length that the President, asCommander in Chief of the armed forces, must, ipso facto, be endowed with all powersnecessary to defend the nation in war time. Thus, they conclude, any action by Congress whichderogates from that power would be inherently unconstitutional. As an example they cite the WarPowers Act. The Memos raise an interesting question of domestic law. Might a militarydefendant in an action for breach of the War Crimes Act, raise as a defense, the superior orders ofthe President requiring a breach of a congressional mandate? The argument raises fundamentalseparation of powers issues which cut to the core of how American government functions. In itsstated form it appears unanswered, but existing authority would seem to cut against it. See, e.g.New York Times Co. v. U.S. 403 U.S. 713, 91 S.Ct. 2140 (1971) (“The Government does noteven attempt to rely on any act of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to 'make' a law abridgingfreedom of the press in the name of equity, presidential power and national security, even whenthe representatives of the people in Congress have adhered to the command of the FirstAmendment and refused to make such a law.”), 403 U.S. at 718; and Rasul v. Bush, 124 S.Ct.2686 (2004) (United States courts have jurisdiction to consider challenges to the legality ofdetention of foreign nationals captured abroad in connection with hostilities and incarcerated atGuantanamo Bay).

which present no bar to a delict in international law (see,e.g. the Dostler Case)

Trial of General Anton Dostler, [hereinafter the Dostler Case]United States MilitaryCommission, 8-12 October, 1945, Law-Reports of Trials of War Criminals, The United NationsWar Crimes Commission, Volume I, London, HMSO, 1949. Those arguments present a startlinganalogy to the arguments raised by defendants at the post World War II Nuremburg trials, andelsewhere, that, because they were required by national law to obey superior orders, they had anabsolute defense against war crimes committed in carrying out those orders. That so called“superior orders” defense was, and has been since, roundly rejected, although that rejectionrepresented a change from prior law(see discussion in Dostler, supra). The point is, of course,that whatever their validity under U.S. national law, they present no defense to an otherwise validcharge of a war crime under international law.

, its argument for nonapplicability of Geneva III rests on the claim that as a matter of fact and law the Taliban did not constitute a de facto government. The short answer is that while the position is certainly arguable, it is also reasonably arguable that the Taliban were the de facto government. They controlled a substantial geographic territory and population, enacted and enforced laws and mandates, carried on relatively complex military operations, appointed persons to governmental posts and received diplomatic recognition from several nations. The core validity of that point is admitted, albeit inadvertently, in the following quote from the 22 January, 2002, Memorandum from Jay Bybee to Alberto Gonzales

Note also that in his Memorandum to the President, Mr. Gonzales states that there are“reasonable grounds ...to conclude that GPW does not apply with respect to the conflict with theTaliban.” The existence of reasonable grounds is simply not the standard for a determination theThird Geneva Convention does not apply. Rather, as noted it is whether “any doubt exist[s].”See, the Gonzales Memo at text accompanying fn 38 et seq.

and William Haynes:

Whether the Geneva Conventions apply to the detention and trial of members of the Taliban presents a more difficult legal question. Afghanistan has been a party to all four Geneva Conventions since September, 1956. Some might argue that this requires application of the Geneva Conventions to the present conflict with respect to the Taliban militia...Nevertheless, we conclude that the President has more than ample grounds to find that our treaty obligations under Geneva III toward Afghanistan were suspended during the period of the conflict... the weight of informed opinion indicates that, for the period in question, Afghanistan was a "failed state" whose territory had been held by a violent militia or faction rather than by a government....Second, there appears to be developing evidence that the Taliban leadership had become closely intertwined with, if not utterly dependent upon, al Qaeda. This would have rendered the Taliban more akin to a terrorist organization.

Memorandum of 22 January, 2002 from Jay Bybee, Office of legal Counsel for Alberto R. Gonzales, Counsel to the President and William J. Haynes II, General Counsel of the Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees at pp 10-11. (Emphasis added).

We want to make clear that this Office does not have access to all of the facts related to the activities of the Taliban militia and al Qaeda in Afghanistan. Nevertheless, the available facts in the public record would support the conclusion that Afghanistan was a failed state...Indeed, there are good reasons to doubt whether any of the conditions were met.

Id. at 16.

What is of particular interest in this analysis is the emphasized language. It is that of argument, not fact, and what it seems to effectively admit is that there is indeed some doubt

The doubtful nature of the argument is emphasized by the enemy combatant trilogy ofcases issued by the Supreme Court on June 28, 2004. In Hamdi v. Rumsfeld, 124 S. Ct. 2663(2004); Rasul v. Bush, 124 S.Ct. 2686 (200), and Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004),the Court decided various issues affecting the legal status of persons regarded by theadministration as enemy combatants unprotected by the Third Geneva Convention. Hamdi is ofparticular importance here.

In the plurality opinion, Justice O’Connor twice refers to “the Taliban regime” and the“Taliban government.” 124 S.Ct. At 2635 (emphasis added). That reference does not appearinadvertent. Not only does Justice O’Connor go on to say that, “...it is notable that militaryregulations already provide for such process in related instances, dictating that tribunals be madeavailable to determine the status of enemy detainees who assert prisoner-of-war status under theGeneva Convention”, citing AR 190-8 §§ 1-6. Id at 2651, but Justice Souter in his concurrence,notes that:

For now it is enough to recognize that the Government’s stated legal position inits campaign against the Taliban...is apparently at odds with its claim here to beacting in accordance with customary law of war...In a statement of its legalposition cited in its brief the Government says that “the Geneva Conventionapplies to the Taliban detainees...

Id at 2657 (citations omitted).

as to the status of the Taliban detainees.

Indeed, in a Notice of Motion and Respondents’ Cross-Motion to Dismiss ConsolidatedReturn to Petition and Memorandum of Law in Support of Cross-Motion to Dismiss,, filed on 6August, 2004, in Swift v. Rumsfeld, No. CO4-0777 RSL, USDC (W.D. Wa), the governmentstates that “United States and coalition forces have removed the Taliban from Power,” at p.5(emphasis added), and that “In the context of ...the removal of the Taliban from power...theUnited states...has seized and detained numerous persons fighting for and associated with theenemy during the course of the ongoing military campaign.” Id.(Emphasis added),

That, of course, triggers the requirements of Geneva Convention Article 5 for a competent tribunal to determine status, and mandates treatment as a POW until the tribunal is held.

As Usual, Hays Parks makes the point most cogently:

References to al Qaeda and the Taliban as separate entities constituted anincomplete and inaccurate picture. The enemy consisted of a loose amalgamationof at least three groups: the Taliban regime (until its December 2001 collapse,following which it reverted to its tribal origins), the al Qaeda terrorist group, usedas the Praetorian Guard for the Taliban leadership (both for internal security priorto and following commencement of US/Coalition operations), and foreignTaliban. The picture was further complicated by the tendency of some to refer tothe Taliban as the de facto government of Afghanistan, because it exercised roughcontrol over 80 percent of Afghanistan. This was open to debate until the collapseof the Taliban, at which time it ceased to be an issue. Until the collapse of theTaliban regime in December 2001, a strong case could be made that this was aninternal conflict between non-state actors in a failed state. By the time Army CivilAffairs entered Afghanistan, the case was absolute.

Hays Parks: Special Forces Wear of Non-Standard Uniforms, 4 Chi. J. Int'l L. 493, 505.Footnotes omitted, emphasis added.

Interestingly, John Yoo makes the same point at a later date.

Unlike al Qaeda, the Taliban Militia arguably constituted the de facto governmentof Afghanistan. To be sure, there is a good case to be made that the Taliban militiawas not even the legitimae government of Afghanistan. Afghanistan had all thecharacteristics of a failed state...On the other hand, the Taliban militia dideffectively control a majority of the territory and population of Afghanistan, andAfghanistan is a party to the Geneva Conventions. [Followed by an argument thatthe Taliban failed to meet the four part test of Article 4(2).

See, Footnote 46 supra]. Yoo and Ho at p.218, fn 46 supra, (Emphasis added).

Judge Bybee later discusses Article 5:

"Should any doubt arise as to whether persons, having committed a belligerent act, and having fallen into the hands of the enemy," article 5 of Geneva III requires that these individuals "enjoy the protections" of the Convention until a tribunal has determined their status. As we understand it, as a matter of practice prisoners are presumed to have article 4 POW status until a tribunal determines otherwise. Although these provisions seem to contemplate a case-by-case determination of an individual detainee's status the President could determine categorically that all Taliban prisoners fall outside article 4. Under Article II of the Constitution, the President posesses the power to interpret treaties

After an effective concession that Articles 4 and 5 “seem to contemplate” statusdetermination on an individualized basis, Judge Bybee’s conclusion that presidential treatyinterpretation power allows a categorical factual determination seems to be a logical nonsequitur. Interpretations of law, no matter how phrased, are simply not determinations of factualstatus. While, perhaps an argument could rationally be constructed to claim that the Presidentcould constitutionally determine the interpretation of a treaty, this rationale veers off that path tostate instead that the President, having the power to interpret the meaning of a treaty, can thenalter the reality of existing facts, even if the treaty means what it “seems to contemplate.” Anysuch approach is incompatible with the core concepts of rule of law, coequal branches ofgovernment and separation of powers. See, Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 1803WL 893 (U.S.Dist.Col.), 2 L.Ed. 60 (1803).

on behalf of the Nation.He could interpret Geneva III, in light of the known facts concerning the operation of the Taliban...to find that all of the Taliban forces do not fall within the legal definition of prisoners of war as defined by article 4. A presidential determination of this nature would eliminate any legal "doubt" as to the prisoners' status, as a matter of domestic law, and would therefore obviate the need for article 5 tribunals.

Id. at 30-31.

What the Memorandum does not discuss is what appears to be the author of this articleto be a fundamental question. How could the Taliban have harbored members of al Qaedawithout controlling a defined territory and population?

In a speech to a joint session of Congress on 21 September, 2001, President Bush notedthat “The leadership of al Qaeda has great influence in Afghanistan and supports the Talibanregime in controlling most of that country.” He demanded that, inter alia, the Taliban “Deliver toUnited States authorities all of the leaders of Al Qaeda who hide in your land,” and that it “handover every terrorist and every person and their support structure to appropriate authorities...TheTaliban must act and act immediately. They will hand over the terrorists or... share in their fate.”(Emphasis added). http://www.cnn.com/2001/US/09/20/gen.bush.transcript/

International law defines a state generally as “an entity that has a defined territory and apermanent population, under the control of its own government, and that engages in, or has thecapacity to engage in, formal relations with other such entities.” Kadic v. Karadzic, 70 F. 3^rd 232244-45 (2^nd Cir. 1995). The Taliban did obtain formal recognition as the de jure governmentfrom three U.N. member states. Prior to September 11, 2001 the United Arab Emirates, SaudiArabia and Pakistan had formally recognized them as the government and entered intodiplomatic relations. See, http://www.cnn.com/2001/US/09/21/gen.america.under.attack/.

It would seem axiomatic that the other two requirements of statehood must have beenmet. That is, unless the Taliban controlled a defined territory and population the United Statescould not have demanded that they deliver all the al Qaeda terrorists “who hide in your land.”President Bush’s reference to the Taliban’s control of “most of that country” only strengthensthat position. See, also, Wallach, Afghanistan, Quirin and Uchiyama:, supra at fn 33.

This argument presents an interesting question of domestic law as to whether a Commander in Chief can order a violation of international law by making a factual finding unsupported by independent evidence. Could one charged under the War Crimes Act (18 U.S.C. 2441) assert as a defense that as a matter of domestic law there was no grave breach, even though it was clearly a violation of international law? The answer to that proposition is beyond the scope of this discussion, although it appears questionable. What the argument does not do, however, for the same (Dostler Case)

See The Dosteler Case supra at fn. 53.

reasons above discussed, is present any defense to charges by any other Geneva III signatory charged to prosecute perpetrators of grave breaches wherever they may be found.

In any case, because doubt as to the POW status of Taliban detainees appears with considerable force to exist, the language of Article 5 provides them with POW status until determined otherwise by a proper tribunal.

In an appearance with the author at the Federalist Society in New York on 27September, 2004, John Yoo said to the audience that, in fact, his arguments regarding non-statestatus had been rejected by the White House, and that determination of non-combatant status wasbased on the four part test of Article 4 (2). That rationale does not appear from the Presidentialorder, fn 43, supra, but if it is correct, the concession that the Taliban were the army of a de factostate only makes the existence of a genuine doubt as to POW status more compelling. Not only isthe four-part test inapplicable to state armed forces, fn 46, supra, but its factors as applied toirregular forces not part of the state’s army, may arguably require an individualized determinationvarying from unit to unit. Thus, for example, the wearing of a recognizable sign, the bearingopenly of arms, and obeying the laws of war may well vary from person to person and unit tounit.