The Torture Question
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new rules for a new kind of war

What was the rationale behind the Bush administration's 2002 decision that the Geneva Conventions' guidelines on treating prisoners of war don't apply in America's fight against foreign terrorists like Al Qaeda? Who in Washington opposed this decision -- and why? Commenting here are: Bradford Berenson, associate White House counsel, 2001-2003; John Yoo, deputy assistant attorney general, 2001-2003; William Howard Taft IV, legal adviser to Secretary of State Colin Powell, 2001-2005; Cmd. Sgt. Maj. John Van Natta, GTMO Prison Superintendent, 2002-2003; Gen. Rick Baccus, MP commander at Guantanamo, 2002; Lt. Col. Thomas S. Berg, JAG, U.S. Army Reserve; and Marc Jacobson, policy planning, Office of the Secretary of Defense, 2002-2003.


Associate White House Counsel, 2001-2003

Bradford Berenson

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We began thinking about potential legal and policy issues that would arise from the capture of foreign terrorists very, very soon after 9/11. ... So the following conundrum occurred to all of us, most of whom had no background at all in these issues, which is this: When you capture a suspected Al Qaeda terrorist, what do you do with him? You can't kill him once you have him in custody and he's been captured. That would be a violation of international law. You can't let him go because he's far too dangerous and potentially far too valuable as a source of intelligence. And you can't, in many cases, try him in the ordinary civilian court system. So what do you do with this person?

The good news is that the United States government has people within it who are experts in virtually every aspect of law, and this case was no exception. It turned out that there was hundreds of years of law on this subject, and the answer was provided by the laws of war, or the laws of international armed conflict. …

But once you appreciate and understand that this is, in fact, an existential threat to our government and to our way of life, that it is a military conflict, even if of an unconventional character, the answers to a lot of these questions about how to deal with detainees become fairly clear-cut. Under the international laws of armed conflict, you are entitled to capture and hold until the end of hostilities individuals who are fighting against you. You are not required to charge them with a crime. You are not required to provide them with a lawyer or access to your courts. And you are not required to let them go return to the battlefield and fight against you and prolong the armed conflict and all of the suffering that that inevitably entails.

There are some issues of classification that arise, but we didn't regard those as particularly difficult, either. You do have to decide whether the person you've captured is what's known as a lawful combatant -- and a lawful combatant is entitled to a certain status under international law and has to be treated in a certain way -- or whether the person you've captured is an unlawful combatant; that is, someone who fights by violating the laws, usages and customs of war, and in so doing, presents an unusual and unacceptable threat to civilian populations, and therefore has a lower status under international law and is entitled to many fewer protections. …

It was clear to everybody that Al Qaeda and the other militant Islamic terrorists were unlawful combatants by virtually any definition and as such were entitled to the lowest level of protection under international law of any category of people involved in an armed conflict. That had implications, too, for the Geneva Conventions, because prisoner-of-war status under the Geneva Conventions is tied to some of the same things as lawful combatancy.

From the very start, our intention was to treat them better than the bare minimums that international law required, because as we understood the requirements of international law with respect to terrorists and unlawful combatants, they were fairly minimal. So we were determined to treat them in all respects humanely and to afford them more rights and more protections and better treatment than they might be entitled to. …

Many people we talked to say that the president['s] Feb. 7, 2002, [memo] announcing Geneva will kind of apply has a loophole big enough to drive a truck through, giving him as much wiggle room as possible.

Well, he did not announce that the Geneva Conventions applied to these detainees. He announced the opposite: that as a matter of law, these folks were not covered by the Geneva Conventions. They didn't have a right to insist on the protections afforded by the Geneva Conventions, many of which made very little sense as a practical matter when applied to people like this. I mean, the notion of paying senior Al Qaeda leaders a monthly stipend in Swiss francs for them to spend at the canteen is a little bit silly when you think about it. The notion of supplying people who are potentially suicidal maniacs with knives and forks, cutlery, as you're required to do under the Geneva Conventions for the preparation of their own food, doesn't make a tremendous amount of sense. And the president came to the conclusion that the United States was not required, in fact, to afford the full panoply of Geneva rights to these detainees when they were captured.

He did, however, say that we were going to afford them humane treatment consistent with principles of international humanitarian law and that we would treat them generally in accordance with Geneva, except to the extent that exigency, military necessity, required otherwise. That's entirely consistent with what he was saying, which is we're doing this as a matter of grace, as a matter of policy; we're going to do it insofar as it doesn't impede the war effort. It was not intended as a loophole, because there was no rule that you needed a loophole to get through. All the president was saying is these people are unlawful combatants; they are not entitled to Geneva status. They are not POWs, but insofar as we can without hampering the war effort, we're going to treat them in accordance with those bodies of law.


Deputy assistant attorney general, 2001-2003

John Yoo

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Why would the president want Geneva not to apply?

Think about what you want to do when you have captured people from the Taliban and Al Qaeda. You want to interrogate them, ask them questions. Hopefully people will cooperate. Think about the barracks environment [required by the Geneva Conventions]. It would probably be impossible to get individual members of Al Qaeda or the Taliban to cooperate if they know they have to go back and live in a group environment with some of the most hardened murders and terrorists. They would certainly kill anyone that was trying to cooperate with the government of the United States.

So in part you have to have individual cells just to prevent them from killing each other and trying to kill guards, but also to encourage others to cooperate by telling them we can protect them.

If you're a prisoner of war under the Geneva Conventions, you can only be asked questions and you cannot be treated any differently based on whether you answer them or not. And in a way, it's a much tougher standard than we even apply here at home. So, for example, the Geneva standard would prohibit the government from offering plea bargains to people. So you couldn't say, "If you cooperate, we're not going to try you, and if you cooperate, we'll move you to a better prison with better facilities." Things that are commonly offered in American police houses to get cooperation from suspects are prohibited under the Geneva Conventions.

I think this is an important thing about why the Geneva Conventions don't really work for fighting a non-state terrorist organization. The primary commodity, the primary weapon in this war with such an elusive enemy is information. And the most reliable source of information comes from the people in Al Qaeda you captured. The need for information from individual detainees is not as important in a normal nation-state world, where you can observe the other side's army and you know where their capital is; you know where their territory is. You have satellites and things, reconnaissance where you can determine what's going on with the other side. You can't do that in a war against Al Qaeda because they don't have territory, population or cities. And so the way to stop future terrorist attacks pretty much comes from getting information from them. …

[The president's Feb. 7, 2002 memo noted that the U.S. would continue to "treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principle of Geneva."] What does that sentence mean to you?

Well, the first thing I was thinking -- we would have been in involved in sort of drafting that kind of order -- but it seems to me that if something is necessary for self-defense, it's permissible to deviate from the principles of Geneva. So I remember the president says that everyone is to be treated humanely and consistent with the principles of Geneva, but there'd have to be some alterations: There's a lot of things that prisoners of war are entitled to which don't make sense if you have dangerous terrorists. …

I think this "military necessity" language has to do with the possibility that you have in your hands a terrorist leader who knows about attacks on the United States, or you have an operative who was about to carry out an attack on the United States or was deeply involved with planning them, and you need to find that information to stop something you're afraid is going to happen in pretty short order. …


Legal adviser to Secretary of State Colin Powell, 2001-2005

William Howard Taft IV

… As I recall, the issue for decision was presented as to whether the conventions applied to the conflict with Al Qaeda, and separately, the conflict with the Taliban, which were going on in the same place. And if they didn't apply as a matter of law to that, whether nonetheless we should conduct ourselves as a matter of policy as if they did apply. That was the issue.

The secretary's view was -- and he was acting on, following my advice on the law -- was that the conventions did apply to both aspects of this conflict. The secretary's view further was that even if they didn't apply as a matter of law, that it wasn't necessary to reach that question because we should apply them as a matter of policy, as, in fact, we had done in Vietnam for the Viet Cong when the conventions undoubtedly applied to the North Vietnamese, but not to the Viet Cong. We decided to apply them to both in that conflict. The secretary was familiar with that, having been a veteran of Vietnam. That was really the issue. And on that last point, of whether we should simply apply them and adhere to their requirements as a matter of policy, the secretary was in agreement with the secretary of defense and the chairman of the Joint Chiefs of Staff.

What was the reasoning behind both you and Secretary Powell, believing that indeed to be the case? What were the benefits?

We had a couple of considerations in mind. One was that the burdens of complying with them were not great, that we knew how to do it, that the Geneva Conventions do permit interrogation of people that you take in and customarily you do get a lot of intelligence through these people. It wasn't by interrogating them. And secondly, that our troops were familiar, absolutely, with how to conduct themselves in conformity with these rules in the conventions.

Thirdly, a concern that if we were to depart from them, we would be exposing our troops, perhaps in this conflict, but perhaps in future conflicts, to the possibility that they would be deprived of the benefits of the conventions if they were captured by the enemy. And we had never done that in the 50 years that the Geneva Conventions had been in effect, starting in I think 1949, [when] we became a party, maybe a couple years later. We had always conducted our military operations consistent with the conventions, and we felt that it was good practice and it served us well, and that we should not start down a road that would lead where we would not know, but could only be disadvantageous to our troops in subsequent situations, or possibly in this situation. …


JAG, U.S. Army Reserve

Lt. Col. Thomas S. Berg

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… [A]ll our doctrine is based on Geneva Conventions. And we were uncomfortable with anything that went outside of those, nor did we see a justification for going outside, because we thought the objective could be achieved within the confines and limitations of what we knew.

We were operating under doctrine that was essentially developed from Geneva on how to run a prisoner-of-war camp. Although there were lots of published concerns about the appearance of Camp X-Ray -- if you remember the cages and the people in the cages -- well, the life of the soldiers who were guarding them was not markedly different. They were in stinky old tents right next to the cages. And the reason it was set up that way is because under Geneva Conventions, your soldiers and your detainees live in similar conditions. The only difference was there was probably better ventilation in the cages then there was in those tents. It was all nasty, but that was basically a prisoner-of-war camp, and that was how it was set up to be, and it was according to our doctrine, and we didn't have any new doctrine to replace it. This is how people were trained to run it. …


Defense Department Prisoner Policy Team, 2002-2003

Marc Jacobson

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… If we had said to the world, "We are going to do our best to comply with Geneva, but here are two or three areas we're worried about: We're not going to allow Al Qaeda to set up a chain of command; we are not going to give them chemistry sets," I don't think the world would have a problem with it. It's the perception that we tossed off Geneva and said, "We're going to have nothing to do with this; we're going to create our own set of rules," that not only created a perception to the world that we are not going to adhere to the rule of law, but from a functional standpoint, I think it may have put our own troops in danger. You have a situation now where other nations can say: "Because of the different nature of this war, we are not going to treat U.S. troops as prisoners of war. They are enemy combatants. I'm sorry -- military necessity. We're following the precedent you're setting."

In the end, the administration was too clever by half. By creating this enemy combatant formulation, by picking and choosing where it would comply with Geneva rather than creating a by-exception situation, the administration made us less safe. It's caused us to have to release people who have gone back to the battlefield to fight again, at least in one instance killing a U.S. serviceperson after being released from Guantanamo Bay. It's created a situation where our credibility is shot in the world, where people don't look at us as a beacon upholding the rule of law, but instead as violators. I just don't think the concept as a whole is up to our American standards, American values. ...

From the beginning, it seemed like not having Geneva, not having the uniformed military code necessarily to follow, a little bit of ad hoc begins to take place here and there, not only in the tactical level but in the strategic level with interrogators and others. Is that your sense?

… The challenge was you have a new situation; you have no choice but to do it ad hoc. You have no choice but to learn as you go along. … [T]he problem was the broader detention policy issue. What is the written policy of the United States government? What is our goal? How are we going to treat captured terrorists? I don't think there still is a clear policy. Some are tried in federal court, some are locked up in the brig in Charleston, S.C., and some are at Guantanamo, and there's no consistency. Clearly, this was ad hoc from the beginning....

Now, a legitimate question to ask [is] did the policies established by the White House and the Pentagon increase the likelihood that prisoners would be abused? That's a very valid question to ask.

And the answer is?

Possibly. I'll leave it at that, my one word. It's a tough question. It's possible. …

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posted oct. 18, 2005

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