“Nothing New at Guantanamo Bay:

“Nothing New at Guantanamo Bay:

Precedent and Prisoners of War”

(DRAFT VERSION)

Dr. Pauline Kaurin

Department of Philosophy

Pacific Lutheran University

Introduction

In early 2002 the Bush Administration announced that Taliban and Al-Qaeda detainees at Guantanamo Bay, Cuba were not to be regarded as prisoners of war and therefore, were not able to claim protections under international law – notably the Geneva Conventions relating to Treatment of Prisoners of War. In subsequent months, there was a great deal of controversy surrounding this decision, both at home and abroad. While much of the debate has centered on what the international statutes (in particular the Geneva Convention and other rules of war) actually say and under what circumstances they apply, I will focus on the aspect of law largely ignored in this debate: precedent. This paper will show that precedent (in relation to treatment of prisoners in times of armed conflict) in American history raises serious questions with the Bush administration position since, even in cases where there was no international statute or the statute was unclear, it has been the practice of the United States to accord prisoner of war status to such detainees. Examples from the American Revolutionary War, the Civil War and the Vietnam conflict will demonstrate cases where the United States was not required by statute or international custom to accord prisoner of war status, but accorded it anyway. These examples will also support the argument that precedent ought to be considered in the of the detainees at Guantanamo Bay and that if this precedent is to be rejected, a clear and unequivocal rationale must be given as to why such a long tradition of according prisoner of war status no longer applies and what the new precedent will be and why.

To start, it will be helpful to outline the problem of the detainees at Guantanamo Bay, discuss the Bush administration policy on these detainees and briefly examine the aspects of international law most relevant to the issue. Who are these prisoners? As of April 2002, there were about between 400 and 600 detainees associated with either the Taliban or Al-Qaeda forces who were captured in the course of hostilities resulting from the September 11, 2001 attack on United States targets.[1] Photographs showed the detainees kneeling, manacled and with various head coverings to shield all or part of their face from view, ostensibly necessary for security reasons. These photographs and what they showed raised immediate concerns about whether the detainees were being treated in accordance with international humanitarian conventions and standards ( not to mention the laws of war), both from human rights groups in the United States and abroad.

In response to these criticisms, the Bush Administration asserted that they were “enemy combatants” not Prisoners of War (POW) and that accordingly, the Geneva Conventions did not apply. At the same time, they did go to a considerable effort to publicly demonstrate that the detainees were being treated in a similar fashion (with a few exceptions) as POW’s would be treated. However, the treatment was only part of the issue; another equally pressing issue was the legal status of such detainees which would affect their future access to counsel, their right to be tried in a certain manner, not to be tortured and to be released at the end of the hostilities. What exactly was their status under Article 4 of the 3^rd Geneva Convention (1949)? Where was the support for the Administration assertion that the above conventions did not apply to these detainees?

According to the US Army Operational Law Handbook, US Armed forces

“…will comply with the [Law of War] regardless of how the conflict is characterized. Judge Advocates, therefore, should advise commanders that, regardless of the nature of the conflict, all enemy personnel should initially be accorded the protections of the Third Geneva Convention, at least until their status be determined…”[2]

When doubt exists about the status of the combatants then POW/ Article 5 Tribunals must be established to make the determination of status, as was done during the Vietnam conflict. What exactly is required for an “enemy combatant” to be considered a POW? According to Article 4, the combatants must belong to one of the following categories (of a party to a conflict): A) Members of armed forces, militias or volunteer corps forming part of such armed forces; B) Members of other groups who are 1) commanded by a person responsible for subordinates, 2) wear a fixed, distinctive sign recognizable at a distance, 3) carry arms openly and 4) obey the laws and customs of war; C) regular armed forces who profess allegiance to a government or authority not recognized by the detaining power.[3]

What was the rationale for the Bush Administration to reject the POW status of the detainees without convening Article 5 tribunals? Their initial position was as follows: 1) International Law does not apply to members of a non-state organization; 2) the conflict was not an internal one (such that Al-Qaeda might be a protected group under category C above); 3) Al-Qaeda members failed to meet four criteria for protection listed in B above and 4) Afghanistan was not a functioning state and therefore, the Taliban was not recognized as the legitimate government (despite being recognized by the United Nations and some nations as such).[4] In a statement on Feb 7, 2002 the Bush Administration suggested that while members of the Taliban might meet the Article 4 criteria in principle, Al-Qaeda did not and further, “…that the Taliban’s actions in violating the laws of war and closely associating itself with Al-Qaeda had the effect of stripping Taliban members of their rights to POW status.”[5] The Administration went on to insist that while the detainees were not entitled to POW status, they would be given many (though not all) of the same privileges as a matter of policy, but not certain legal protections. (They would not have a canteen, pay, personal financial accounts, and access to scientific equipment, musical instruments or sports outfits.)

Beyond these pronouncements, it was unclear what customary legal protections the detainees would have under other international law or other conventions (assuming that Article 4 protections did not apply). What is the rationale for not extending certain customary legal protections to these detainees? The Administration emphasized again that the Taliban failed to meet all 4 of the criteria in Article 4 (see B above) by virtue of their association with Al-Qaeda. According to the Administration, both were guilty of “promoting barbaric philosophies,” did not adhere to the Geneva Conventions and should not be entitled to either those protections or an Article 5 tribunal hearing to determine if those protections were warranted.[6] The determination had already been made; it was obvious, the Administration alleged, that these detainees were not entitled to such protections.

What are we to make of these claims? If we look only at the technical letter of the statute (what Article 4 of the Third Geneva Convention actually says), we could cede that the Bush Administration has a point. On their interpretation of the statute (which was by no means uncontroversial), the United States may not be required to accord POW status to such detainees, although one might argue that a tribunal ought to be convened to make that determination rather than the Administration making what appeared to be an ad hoc decision. Despite the considerable debate about what the statute says and under what circumstances tribunals ought to be convened, for the sake of argument let us grant that the Administration is right on the letter of the statute. However, any first year law student knows that there is much more to law that what the letter of the statute says; law also includes precedent and how judges have interpreted and applied that statute. The controversy to date has been largely concerned with Article 4 as a statute and what it says or with that other international statutes might say, but what about precedent? What about how the United States has considered similar cases of enemy combatants in the past?

II.

To get at legal precedent and the role it might play in the case of the detainees at Guantanamo Bay, consider an objection the Bush Administration might raise against the consideration of precedent: this war on terror is a totally new, “unprecedented” situation with no analogies in history or law and therefore, there are either 1) no prior situations or experiences that we might look to for guidance or 2) any that exist do not have enough parallels to apply effectively. In either case, they might argue, looking to precedent is impossible and/or impractical in dealing with this situation. Such an objection is useful since it reveals several misconceptions about legal precedent and its uses. First, this objection assumes that there are certain situations that are entirely new and without relevant parallels to what has come before. Second, it assumes that for precedent to work there must be a very clear (nearly perfect) parallel and in the absence of such a parallel, one is justified in ignoring prior precedent and/or making new rules. Third, it assumes that precedent is fairly rigid and inflexible and can not be made to be adapted to a slightly different, but analogous situation.

To address these misconceptions, we need to look at what precedent is and how it works in the law. It is important to be clear that precedent is not about acquiring certainty or applying some kind of objective formula that will give one the right (and same) answer each time. Rather we ought to think of it in the same way as our own life experiences: they might give us a guide to follow in many situations, but the tricky part is trying to deicide which past experiences are relevant guides when confronting what seems to be a new situation.[7]

Imagine that I go to a party where the host and/or hostess have elected for a North African theme. Here is a social situation that seems entirely novel and “unprecedented”: when I arrive my host greets me wearing unfamiliar attire and in an unfamiliar language; the décor of the house consists not of couches and tables and chairs, but lots of draperies, low tables and cushions on the floor; the drinks that I am offered are unfamiliar and served in unfamiliar vessels; when time comes for dinner we gather around low tables the food is piled onto several common dishes and there are no utensils or individual plates anywhere in sight. What do I do? After I get over the shock of it all, I would likely to consider how I have handled other social situations which have been unfamiliar (even if they have not been this unfamiliar). So I think about the time I went to another theme party where there was unusual food and décor. What did I do? In that situation, let us say that I watched the other guests and my hostess for cues and followed their lead. Is there any good reason that following such a precedent seems not to be indicated here? (Such as, that strategy utterly failed and they kicked me out of the party and never invited me to another.) If not, I am likely to follow that precedent unless I can think of another case that seems more analogous and would be more helpful in navigating this “new” situation.

Similarly, legal or judicial precedent is a decision or procedure that serves a guide in the determination of future, analogous cases; it is sometimes referred to as stare decisis meaning “let the decision stand” and has been a central element in the development of common law. Why? Why has this idea been so important? The use of precedent has been a force for stability, rationality and internal coherence in the law – if one can generally count on courts to look at past decisions as a basis for future decisions, this generates a certain kind of predictability in the law which one might see as important in providing a coherent system and in influencing the actions of persons who must live by that law. On this view of precedent (where the predictability and rationality of the law are primary considerations), judges and others look for the closest analogous decision or case and then apply that decision to the new case in a straightforward manner.

However, such a strict view of precedent has its own problems.[8] What if the original decision was a flawed one? What if social norms, ethical standards or public sensibilities have changed? Should one never act in such a way as to ignore or overturn what has gone before? On a less stringent view of precedent, one looks for the closest analogy to the case at hand – not simply in terms of the facts of the case itself – but also considering how the parties are effected, what concepts of equity and justice might require, what the future impact of the decision might be on the larger society or legal system. Another issue that supports a broader view of precedent is the fact that precedents are often imprecise (it is not clear how the past decision applies to the present case) or there may be situations where more than one precedent might apply. In such cases, judges must try to decide which precedents ought to be followed or how they ought to be applied and interpreted in terms of the present case. This cannot simply be a case of applying a past decision as if it were a strict rule or formula, but must be done taking into account the function of the law and larger considerations of justice.

Furthermore, there may be cases which seem to have no clear precedent or in which the precedent is viewed not to apply. Past precedent can be and is overruled when circumstances seem to warrant, but this is not to be taken lightly since it can unduly undermine the stability, coherence and predictability of the law. Precedent is to be taken as a guide and absence of a precedent does not bar a decision; C. Gordon Post observes, “The fact that there is no precedent is not conclusive. The law would be an absurd science were it founded on precedent only.”[9] Just as in life, past experience is a guide, but we also may have situations where experience is not entirely helpful and we have to rely on other kinds of resources to make a decision – reason, logic, norms and ideas (equity and justice). Consequently, we use precedent in the law as guide about what worked in the past – looking at analogous situations in similar ways for the sake of efficiency, coherence and predictability, but also recognizing that we may have to overturn past experience or take a new approach if circumstances warrant.

To return to the objection at the beginning of the section, while it is possible that there are some situations that are entirely novel, it is unlikely that there is any situation where we cannot find at least some analogies with what has happened in the past, with some parallels that we might draw from past situations. Clearly there is no such thing as a perfect precedent (because otherwise it would be the exact same situation and we would already know what to do) which is why there are debates about which precedents ought to be applied in a given case and shades of interpretation about the various ways that a particular precedent could be seen to apply to a new case. If we are going to look at the problem of the detainees at Guantanamo Bay as a legal issue, then the first course seems to be to look at analogous cases and see if there are past circumstances that might shed light on the present issue and if there are, as I will argue later that there are, to what degree they can apply to the present case. It is certainly possible that the analogies are not close enough to be applicable or that the precedent of the past needs to be overruled, but we would need to make a compelling case for this, rather than simply asserting the necessity for a new rule without any reference to what has been done before.

III.

If there are analogies that we ought to consider in examining the treatment of these detainees, what might they be? (Recall that aside from members of regular armed forces (either of a recognized or unrecognized state), Article 4 of the Geneva Convention articulated that members of other groups had to 1) be commanded by one responsible for subordinates, 2) wear a fixed, distinctive sign recognizable at a distance, 3) carry arms openly and 4) obey the laws and customs of war.) Where are there analogies for how to treat “terrorists” who do not seem to fit this picture of the enemy soldier, in a conflict which does not seem to bear any resemblance to past “wars” and under circumstances in which the normal rules of engagement (international law, the Geneva and Hague Conventions and military custom) do not seem to apply?

In this section we will look at three cases which do not seem to meet the usual parameters of conventional warfare waged by conventional soldiers against other soldiers of conventional nation-states: the American Revolutionary War in which a new and unrecognized nation was at war with its colonial parent; the American Civil War in which part of the nation seceded and went to war against former compatriots in a civil war; and the Vietnam conflict in which regular and guerilla forces fought against their French colonial parents and later, their allies the Americans. In all of these cases, there are questions that might be raised about whether 1) these groups would meet the requirements of international law and custom for prisoners of war; 2) the United States was required to give prisoner of war status to these captured combatants; and 3) if they did, why they did so – on the basis of what law, statute, custom or precedent.

In the American Revolutionary War the American forces (mostly militias) were in rebellion against the regular army forces of Great Britain, who had been their colonial parent. While France eventually recognized the autonomy of the new nation (and provided material support), Great Britain (and other nations) did not. While the kind of warfare could generally be seen as conventional, the American militias used strategies that violated the customs of war of the 18^th century and were censured by the British as dishonorable; using what in the 20^th century has been termed “guerilla warfare.” Much like later guerilla type groups, they used the geography of the land to their advantage and when possible relied on ambush, strategy and hit and run tactics to redress the fact that they were out equipped (including the issue of uniforms) and out manned. There were of course battles that would have looked much like the conventional warfare of the time, but conventional battles can and have been a part of other conflicts in which guerilla warfare is used effectively.

How was the issue of captured enemy combatants handled? Apparently, the American states and their militias tried to observe the customary rules of international law in this regard, while the British varied between observing the customs of war and what was considered acceptable in quelling a domestic disturbance (standards lower that the treatment to be accorded to prisoners of war).[10] It is apparent that the customary rule that prisoners of war cannot be required to perform labor directly harmful to their state of origin was generally observed (as it was during the US Civil War.) The American Congress permitted captured officers to have their liberty on parole, but not those of inferior rank – as was international custom at the time. Congress provided all officers on parole with freedom (sometimes more freedom than Great Britain allowed captured officers), while Britain allowed American officers the same freedom while in England and more liberal freedom in returning home.[11]

General Washington reported to Congress in 1776 that it was international custom for prisoners of war held by England and France to be maintained by a commissary who contracted for their support and that officers on parole were allowed to negotiate their own bills of exchange.[12] Accordingly, in one of the first Congressional resolutions on the issue, it was provided that British prisoners captured in New York would be maintained at the expense of the Crown. In the same year, it was reported to the American Congress that American prisoners in British hands were allowed insufficient food, so arrangements were made to maintain these prisoners at American expense. Despite this, there was conflict and controversy over the issue since American prisoners continued to be maintained at levels that were lesser than those for contemporary French, Spanish or Dutch prisoners – including lower rations and no way to supplement the allowances. In addition, when Great Britain did not supply her own prisoners in American hands, Congress resolved to give the same rations to the British prisoners that they British gave to American prisoners, making up for deficiencies when British supplies fell short of these requirements.[13]

In the case of the American Revolutionary War, the international customs (since there were few codified statutes at the time) were for the most part followed and if anything, it was the British how might be accused of not treating American prisoners of war as well as they should have (despite the fact that for the most part these prisoners were accorded customary treatment). The scandal caused by the discovery of the mistreatment of American sailors aboard British prison ships demonstrates the extent to which it was expected that these customs were and would be followed by both sides. That such treatment was largely accorded by both sides is significant since the British might have taken the position that the Americans were British citizens in rebellion, and therefore guilty of treason, and treated them accordingly. However, they did not and for the most part accorded them prisoner of war status and treatment.

On the American side, it might have been argued that since Britain did not recognize the United States as a sovereign nation, the Americans were not required to adhere to international customs of war in dealing with British prisoners. However, very early in the war it was made clear that prisoner of war status and treatment would be accorded to the British. Further, it could be argued that the Americans went beyond the custom of the day (that each nation pay for the maintenance of their own prisoners of war) and provided support for British prisoners of war when the support given by Britain was insufficient to meet international customary treatment – a fact made all the more significant by the fact that this was a new and financially struggling nation.

By the time of the US Civil War, many of the practices that were merely customary in the Revolutionary War were in the process of being codified and made into international statutes. The Treaty of 1785 between the United States and Prussia was one of the earliest codifications of these customs and became important in making specific these practices. Another major innovation was the Lieber Code, which was the first comprehensive codification of customs of war, especially in regards to the treatment of prisoners of war.[14] This code and its principles of military necessity were applied in 1868 to the ban of explosive bullets on the grounds of causing unnecessary suffering, adopted in 1870 as policy the Prussian government during the Franco-Prussian war, formed the basis of the Brussels Declaration in 1874 which in turn influenced the Hague Conventions of 1899 and 1907 (the basis for contemporary rules of war).[15] In addition it was Lieber himself, an abolitionist and Union backer, who gave the US Army guidance on the treatment of Confederate prisoners and the handling of guerilla and other irregular forces. He argued that the Federal government could, according to the laws of war, accord Confederate soldiers the prisoner of war status on humanitarian grounds (belligerency status) without recognizing the legitimacy of their government.[16]

The Lieber Code specified standards of confinement that were humane, but also compatible with safety, and forbade the subjection of prisoners to conditions not necessary to their maintenance (such as torture).[17] While the rule on rations (that rations given prisoners of war should be similar to military rations of the “detaining state”) was endorsed in principle by both sides, in practice the Union did not provide the same rations as the Confederate side (who generally observed by the rule and supplied the same rations to Union prisoners as they did to their soldiers). Despite these problems, one of the most extensive uses of parole may have been during the US Civil War; Union and Confederate prisoners of war were regularly discharged on parole ten days after capture.

However, there were problems with the treatment of prisoners of war by both sides and criticisms which led to changes in the Geneva Convention (1864) and what might be considered the first war crimes trial: Andersonville. At Andersonville in Georgia, Union prisoners of war were held in conditions that were a terrible blot on the Confederacy; there was an unsurpassed record of depravity, disease and atrocities committed with an unparalleled morality rate.[18] From these conditions the following charges were alleged: violating the laws of war, impairing and injuring the health and destroying the lives – by subjecting to torture and great suffering, by confining in unhealthy and unwholesome quarters, by exposing to the inclemency of winter and the burning suns of summer, by compelling use of impure water and by furnishing insufficient and unwholesome food – of about 45, 000 Union prisoners of war at Andersonville, Georgia.[19] In the trial it became clear that this horrendous situation was not merely due to neglect or negligence, but was the calculated design of two men Werz and Winder. Moreover, there was no military reason for this kind of treatment – no military advantage that could be said to accrue to subjecting Union soldiers to such conditions.

The scandal and outcry raised in the wake of Andersonville, like that following the mistreatment of American sailors during the Revolutionary War, indicates the extent to which the customs of war, especially in the codified form of the Lieber Code (1863), were expected to be followed. Once again if we look at the letter of the law (or a strict interpretation of custom), the Union side might have argued that by treating the Confederate prisoners of war they were legitimizing the rebellion and secession of the Southern states or that these citizens were in rebellion and ought to be treated as those who had committed treason. However, as noted above, the Union (at least in principle and to a lesser degree in practice) did accord the Confederate soldiers prisoner of war status and treatment. Even more interestingly, the Confederate side – who like the Americans during the Revolutionary War – could have argued that since they were not recognized as a legitimate state by the Union, they were not obliged to respect the Lieber Code (which was Union policy) or other rules of war. The blot of Andersonville notwithstanding, the Confederate side did not take this tack and accorded prisoner of war status and treatment to the Union combatants they captured.

What about more contemporary examples? One could argue that the above two examples do not tell us much because the customs of war (codified or not) were generally accepted by both sides. In addition, much of the warfare in both of these conflicts was what we might consider “conventional” as opposed to the sustained guerilla warfare (with a few “conventional” engagements) of Vietnam. Vietnam seems to be a closer analogy to the so-called “War on Terrorism” since the Vietnamese were explicit about their use of non-conventional means of warfare and their rejection of the traditional laws and customs of war. To get at this issue consider the US military treatment of Vietcong soldiers, especially the irregular forces: it was alleged – like the Bush Administration has alleged of the Taliban and Al-Qaeda – that they did not wear uniforms (the notorious black pajamas), did not have a standard command structure (being organized into small 3-9 men groups), did not carry arms openly and did not adhere to the rules and conventions of war.

First, some definitions and distinctions will be helpful in clarifying the nature of the different Vietnamese groups that were involved in the conflict. The term Vietcong was used to delineate Communist forces operating in South Vietnam and included all of the following: National Liberation Front of South Vietnam, People’s Liberation Armed Force (PLAF), Communist Party of South Vietnam (People’s Revolutionary Party) and People’s Army of Vietnam (PAVN).[20] The National Liberation Front of South Vietnam was a communist front organization headed by a central committee with elements down to the village level; there were 20 ‘independent’ organizations with a total membership estimated between 200, 000 – 300, 000. The People’s Liberation Armed Force (National Liberation Front Army) included a main force (the ‘hard hats’ which comprised a full military force) and various para-military forces which were guerilla in nature. The Regional and Territorial units were bands of guerillas that operated full-time as guerillas, while there were also local guerilla groups who farmed in the day and operated as guerillas near their homes at night.

According to Annex A of Directive Number 381-46 (December 27, 1967), which laid out the Criteria for Classification and Disposition of Detainees, detainees whose status has yet to be determined are “…entitled to humane treatment in according with the provisions of the Geneva Conventions.”[21] In several places this document is clear that such detainees are entitled to Article 4 (Relative to the Treatment of Prisoners of War) Geneva Convention protections until their status has been determined by a competent tribunal. It is also made clear that the US views the Vietnam conflict as international in character and accordingly the Geneva Conventions do apply. It further indicates that the United States bears responsibility for making these determinations and that detainees are not to be transferred (to the Government of South Vietnam (GVN) for instance) until such a determination has been made.

Further, detainees will be referred to a tribunal when 1) they have committed a belligerent act and 2) either there is doubt as to their status or a determination has been made of Non-Prisoner of War status (NPW) and the detainee or his advocate claims he is entitled to Prisoner of War (PW) status.[22] The document also lays out the rights of detainees which include right to counsel and an interpreter and most importantly, that “…no person may be deprived of his status as a prisoner of war without having had an opportunity to present his case with the assistance of a qualified advocate or counsel.”[23]

Prisoners of War were defined as those belonging to one of the following categories: the Vietcong (Main Force and Local Force), North Vietnamese Army regulars (NVA) and irregulars including full-time guerilla units which operate outside their home area, self-defense forces which operate in their home area and secret self-defense force who operated in Government of Vietnam controlled areas.[24] VC and NVA soldiers were accorded this status by their membership in these organizations and irregulars were accorded this status if they were captured engaging in combat or other belligerent acts or could have been proved to have done so (excluding acts of terrorism, sabotage or spying). Non-Prisoner of War status was accorded to those who were entitled to PW status, but were subject to being tried by GVN for offenses against the law; those who were members of irregular guerilla units detained while not actively engaging in combat or belligerent actions or where it could not be proved that they had done so; those suspected of being a spy, saboteur or terrorist; those who voluntarily submitted to GVN control; and innocent civilians.

Despite the fairly clear policies in this document, in addition to the Geneva Conventions and other US policies, questions were raised about whether (and to what extent) the laws of war should be followed by American troops and whether doing so would put them at a combat disadvantage. It was alleged that the VC irregulars (and sometimes others) did not wear uniforms regularly or in the sense required the rules of war; sometimes they wore NVA uniforms, more often the “black pajamas” and at times dressed as peasants – with nothing to distinguish them from civilian non-combatants in the area. It was also alleged that, on a regular basis, the VC did not follow the rules of war – engaging instead in guerillas tactics, sabotage, terrorism, misinformation and preferring to avoid the larger “conventional” engagements.[25] Finally, a great deal was made (especially in the American press) of the treatment, rather mistreatment, of US prisoners of war, claiming that they were subjected to conditions (notably torture) prohibited by the Geneva Conventions.

What happened in practice? While the official policy was to accord Prisoner of War (PW) status to captured VC (even irregulars), clearly the results in the field were mixed – largely because of the practical and logistical issues involved in fighting a guerilla enemy and the sense that “the other side isn’t playing by the rules, so why should we.” It was this second issue that came into conflict with a long precedent of at least attempting to uphold international law and the customs of war when news of the so-called “My Lai massacre” hit the American press.[26] What should be made of the reaction to what happened at My Lai? For one thing, it did show the public and policy makers the practical difficulties inherent in upholding such standards in “unconventional” warfare, but it also showed the moral, legal and political consequences of not doing so. At the time, the argument was not so much that these standards did not apply (that the Geneva Convention was not relevant or applicable, in a legal sense, to this conflict), but rather that it was practically impossible, unrealistic or militarily disadvantageous to carry out what these laws and conventions required given the field conditions faced in the Vietnam conflict.

In spite of the controversy, one of the major results of the trials in the wake of My Lai was a revolution in how soldiers (especially the enlisted) were trained; their training now included clear, specific instructions in the Geneva Conventions that concerns the treatment of captured POW’s and enemy combatants.

IV.

What conclusions are to be drawn from the above discussions? In all of the above situations, despite the fact that the US could have argued that they were not required by the letter of international law or the customs of war to accord POW status to captured enemy combatants, they did so. Further they did so in cases where it was not convenient or advantageous (financially, politically or militarily) and where not doing so could have provided a clear advantage – notably in the case of Vietnam.

Given the fact that the US was not required by statute or custom to accord prisoner of war status and treatment to these enemy combatants, what accounts for the fact that they followed this course? It is my claim that it is precedent that accounts for this consistency, even in cases that did not seem to fit the conventional model of war, which did not seem to be directly analogous to other cases where POW status was automatically accorded. In all of the cases it is clear that the question was raised and that some kind of policy determination had to be made, which suggests that it was not automatically clear what should be done.

Even if one were to reject the examples and arguments from the American Revolution War and the US Civil War as following antiquated ideas of chivalry and customs of war (that the precedent appealed to in those cases can no long be seen to apply), the example of Vietnam presents a clear and specific precedent as to how enemy combatants who do not meet the four criteria of Article 4 should be treated. However, this precedent was not followed (or even mentioned) in the present case. Why not?

First, if one wants to argue that the precedent (even of Vietnam) does not apply in this case, one needs (as judges who overturn a prior precedent must) to provide and argument and compelling reasons as to why the precedent ought to be rejected; this can also mean ‘rejected,’ not just for this case, but for future cases – in effect generating a new precedent. Why should this precedent be overturned? What is the argument for the new precedent? Failing to address this issue risks a great deal – treating the law as a function of power and whim rather than of reason, predictability and coherence. Second, the wording or the application of the statute, while not irrelevant, does not get at this issue – precedent is also part of the law.

In looking at precedent we need to look for analogous situations (just as we did in the case of the Moroccan dinner party above) and see what was done and why. While there are some analogous elements to all of the cases discussed above, Vietnam seems to have the most analogous points since it was a conflict in which there were both regular (NVA, some VC) and irregular (VC) troops. In the case of the Guantanamo Bay detainees the regular forces might be the Taliban and the irregular forces some of the Taliban and the Al-Qaeda members. The same issues that the Bush Administration raised with regard to the Taliban and Al-Qaeda were also raised during the Vietnam conflict. And yet, POW status was extended during Vietnam to even irregular VC as a matter of policy, and to some degree in practice.

Given these similarities and the clarity of the precedent from Vietnam, I would argue – in the absence of a clear case as to why the precedent does not apply or should not be followed – that a similar policy can and should be followed here. This means that POW status could and should be accorded to all categories of enemy combatants (regular and irregular) with the one exception that was allowed in Vietnam – sabotage, terrorism or spying – which would clear exclude many of the detainees with which the Bush Administration seems most concerned. Bringing this exception to bear on the present case also undermines the Bush Administration claim that there is no precedent for dealing with terrorists – at least in the case of Vietnam, there is a clear and specific one. In addition, the status of all the detainees must be determined in accordance with the procedures set up during Vietnam (Article 5 tribunals).

Why? What is the argument for following that precedent?

To address this question, I want to echo a line of argument quoted by Kenneth Anderson in his article “What To Do With Bin Laden and Al Qaeda Terrorists: A Qualified Defense of Military Commissions and United States Policy On Detainees at Guantanamo Bay Naval Base”:

The United States government could have pursued terrorist suspects by traditional law enforcement means, in which case the Geneva Conventions would not apply….But since the United States government engaged in armed conflict in Afghanistan – by bombing and undertaking other military operations – the Geneva conventions clearly do apply to that conflict.[27]

To this point, I would add that if the United States chooses, as it has, to use the tools of war in dealing with terrorists, then international law and the rules of war (not just the Geneva Conventions) must be followed; this includes not just following the particular statutes involved, but also means following legal precedent unless a case can be made for a new precedent.

We (I say we because the Bush Administration does and says what it does on my behalf as a US citizen) cannot abandon the laws of war (either statute or precedent) simply because 1) the letter of the statute might be seen not to apply – on a very narrow reading of that statute – though the spirit of the statute and precedent clearly do and 2) we find it inconvenient or inhibiting to our conception of the war effort. If you give by the rules of war, you die by the rules of war. Any attempt to circumvent this raises disturbing questions about to what extent and under what circumstances each nation gets to be their own arbiter of when and how international statute and precedent apply to them. It is hardly necessary to point out the very serious and wide ranging consequences of such a view, especially when the United States is fond of appealing to international law, the rules of war and moral norms in making its claims against groups like the Taliban and Al-Qaeda, not to mention legitimate nation-states.

Conclusion

This paper had attempted to address a lacuna in the discussion of whether prisoner of war (POW) status and treatment will be accorded to the Taliban and Al-Qaeda detainees at Guantanamo Bay: precedent. I have argued that three cases, the American Revolutionary War, the US Civil War and the Vietnam conflict, all provide analogous points that we should look in thinking about the present case. While the Vietnam case has the closest analogy (and several policy suggestions were made on the basis of the precedent from that conflict), all of the examples demonstrate that the United States has, even in cases where it was not required by the customs of war or international statute to do so, accorded prisoner of war status and treatment to enemy combatants captured in the course of hostilities. In formulating present and future policies regarding these detainees, the Bush Administration needs to take account, not just of what the letter of the international conventions and statutes say, but also what precedent indicates. If they determine that past precedent is not applicable and/or a new precedent is indicated, (like judges) they must give a clear and compelling argument and rationale for the change in precedent – as opposed to just asserting that it does not apply.

NOTES