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December 16, 2002 Excerpts
from interview with Charles Allen, Deputy General Counsel for International
Affairs, U.S. Department of Defense Q: In responding to the attacks of September 11, did the administration feel that it faced a challenge that called for breaking new legal ground, or did you feel that the terrorist threat could be handled within international law as it then stood? A: The attacks were clearly and categorically lawless. On the other hand, I believe that international law covers such egregious attacks and, of course, the US has operated within existing law since September 11…I think that despite the fact that the terrorists present an unconventional foe, the fundamental principles of the law of armed conflict have proven themselves to be applicable to this conflict. And US military actions in response to this challenge, to these threats to the US and to many of our friends and allies, have been consistent with the principles of the law of armed conflict. Q: If this is an armed conflict, who is the enemy? A: The enemy includes al-Qaeda and other international terrorists around the world, and those who support such terrorists. Q: Meaning terrorists who can operate from elsewhere in the world, and strike within the United States? A: Right, and certainly terrorists who can strike not only within the United States but who can threaten our forces abroad and our friends and allies. Q: Did this war begin with the attacks of September 11? A: I think there is no question that the United States was the victim of an armed attack by al Qaeda on September 11. The world community – including the United Nations, NATO, the OAS, Australia, New Zealand and many others – have acknowledged the fact that the United States suffered an armed attack on September 11. I think you could even characterize the events of Sept 11 as acts in furtherance of an armed conflict started at an earlier date by al Qaeda against the United States. I think it’s very difficult to pin down the precise date and time that the armed conflict began… I don’t know that there’s a clear answer to that question, but there’s no question that we were the victim of an armed attack by al Qaeda on September 11, and that the conflict started no later than that date. Q: Will there be a clear indication of when the conflict ends, and what would that be? A: I think that we are quite early in this conflict. From the outset, the President in his reports to Congress consistent with the War Powers Resolution and in his statements to the American public and to the world has indicated that our conflict with terrorists of global reach will be a lengthy one. I think that it therefore is premature to try to speculate as to when the conflict might end. The basic rule is that we can detain enemy combatants until the end of hostilities. The question of when those hostilities end is at this point premature. At the appropriate time, the President will be advised as to the appropriate factors and will make a decision on the basis of all the circumstances. I think that recent events – the Bali bombing, terrorist attacks in the Philippines, Kuwait and elsewhere – only underscore the fact that this conflict remains ongoing and will continue for the foreseeable future. Q: Does the administration believe that it’s not simply a question of the organization we know as al-Qaeda, headed by Osama bin Laden and other associates with whom we’re familiar, but that as long as there is a real threat of serious terrorist action against the United States at home or overseas, then the war will still be ongoing? A: Is it possible that at some point we will consider that we are not any longer subject to widespread terrorist attacks such as the ones that we have suffered in recent years, to the point where there may be more sporadic attacks and that therefore we would no longer be in an ongoing armed conflict? I think that’s a fair question. I think that the question is at this point premature. We would like to be in a position to rule out another attack like that of September 11. I don’t think we’re close to that point. Obviously we hope to be there one day. Once again I think it’s premature to make a judgment on the point at which the current conflict would end. Q: The administration has been at pains to make clear that the people currently detained in Guantanamo Bay and elsewhere are not in indefinite detention – so you do envisage a definite end to hostilities? A: Our view is that the cessation of hostilities means the point at which there is no reasonable prospect of the resumption of hostilities…We’re not talking about an absolutely perfect world where we don’t think that it’s possible for any terrorist attack to occur in the future, but rather a world in which there is no reasonable prospect of the resumption of the kind of hostilities that we are now seeing. The authority to detain enemy combatants during hostilities is well settled under international law and certainly under the US Constitution, and so I think it’s maybe an understandable shorthand term when we don’t foresee the end of the conflict at a particular date. But it is absolutely lawful to detain these enemy combatants until the end of the hostilities; therefore, it is by no means an indefinite detention in the sense that one might attribute to the lawless countries that have no process attaching to the detention of persons in their control. In earlier conflicts it was perhaps easier to see very clearly that simply returning detained enemy combatants – prisoners of war in that case – would probably result in that person rejoining the battle against the United States. That’s the underlying basis for being able to detain enemy combatants during armed conflict. Q: Maybe one of the reasons why this seems to be complicated is that the enemy in this conflict poses particular difficulties about the identification of who is a combatant, because they don’t wear uniforms or carry arms openly, and there’s no specific battlefield? A: That may well be a factor, and I think it’s important to point out that it is the lawless terrorists who do not distinguish themselves by uniforms or distinctive emblem, and who do not comply with the law of armed conflict, who bear responsibility. But it can also be noted that this lack of distinction, which is a violation of the law of war, is precisely one of the elements that creates an issue in the public’s eye. "Gee, are you sure that person who wasn’t in uniform, isn’t a classical soldier in the sense of the law of armed conflict, should be detained as an enemy combatant?" I assure you we’re very careful about that. As Secretary of Defense Rumsfeld has said on a number of occasions, we have absolutely no desire to detain anyone any longer than is absolutely necessary. And that goes right to the outset of a detention. We have no desire to detain anybody that shouldn’t be detained – anybody, that is, who is not a threat to the United States. Q: What is the definition of who is or is not an enemy combatant? A: Our conflict is with al-Qaeda and with other international terrorists and their supporters. The world agrees that the US was attacked and is in armed conflict with that stated enemy. Therefore, in exercising our right of self-defence, we can target members of that enemy force and we certainly can detain such persons in accordance with the laws of armed conflict. Q: But are we talking about people who are members of al-Qaeda, or have been to a training camp? What are the criteria used for determining whether any particular individual is in fact an enemy combatant? A: I think these determinations are fact-dependent, and I assure you that our combatant commanders and their subordinate commanders take great care in ensuring that the people they put into detention as enemy combatants are in fact those who are a part of that enterprise and/or who threaten the United States. It’s certainly conceivable that mistakes can be made. I’m sure that has been true throughout history. As you know, recently we released four enemy combatant detainees. Our experience with them and the facts we learned from them, led us to determine that they no longer posed a threat to the United States. Before release, the detainees were asked to and willingly did sign an agreement in which they stated they would not engage in any activities against the interests of the United States. But even before that agreement a determination was made that they did not pose a threat to the United States. There’s no vindictiveness in this. We want to protect the United States as the President has said. This suggests why we need to be so careful about this matter. An erroneous conclusion that somebody is not any longer a threat to the US could be disastrous to us should they return and participate in another attack on the United States. Q: What legal regime governs the detention of the people held in Guantanamo Bay? A: The regime of law that applies is the customary law of armed conflict. The determination has been made that al Qaeda is by no means a state party to the Geneva Conventions. It’s a foreign terrorist group, and clearly its members are not entitled to prisoner of war status under the Geneva Conventions. With regard to the Taliban, even though the United States did not recognize the Taliban as the legitimate Afghan government, Afghanistan is a party to the Geneva Conventions and was determined by the President to be covered by the Conventions. But under the terms of the Conventions the Taliban do not qualify as prisoners of war. Having said that, we apply existing law of armed conflict and treat the detainees -- al Qaeda and Taliban alike -- humanely and in a manner consistent with the principles of the Geneva Conventions, which we believe are a part of the international law of armed conflict. Q: Do you think that the Geneva Conventions apply generally to the ongoing conflict between the United States and al-Qaeda and associated groups? A: The Geneva Conventions as such do not apply in terms of the conventional provisions of the Geneva Conventions in all their particulars. But that does not mean that the principles embodied in the Geneva Conventions are not very important principles. We have adhered to these principles throughout this conflict. And I think that all of the reports of visitors to our facilities and others who have commented on the treatment of detainees would agree that the United States is in fact treating them consistent with the basic principles of the Geneva Conventions. With regard to the global war on terrorism, wherever it may reach, the law of armed conflict certainly does apply, not only in the sense that we’ve been focusing on (concerning the treatment of detainees), but also in the sense of the principle of distinction, in the sense of targeting decisions, and in the sense of how those who are removed from the combat are treated. And the law of armed conflict is inspired by certain very important conventions such as the Hague Convention and the Geneva Conventions. The US has probably the strongest law-of-war programme in the world, and has a very strong and clear conception of those fundamental principles that cover all of our military activities in this war. Q: If United States forces were to be taken captive either by a state government or a non-state organization, would they be covered by the Geneva Conventions? A: Our forces comply with the law of armed conflict and distinguish themselves from civilians; our nation is lawfully in armed conflict–with the lawless enemy comprised of terrorists and terrorist supporters. Therefore, we would certainly argue, with respect to any state actors who might come into control of our forces, that our conduct of the conflict is completely lawful, and as a party to the Geneva Conventions and other relevant treaties that we should be treated in accordance with the provisions of those treaties. The US is engaging in this armed conflict in self-defence lawfully under the law of armed conflict, and we have an expectation and a right to demand that our people if captured by anyone be treated in accordance with the Geneva Conventions. That literally applies to any state actor who might come into control of our people…. With regard to a non-state actor, we would argue that at least that treatment accorded under the Geneva Conventions would be required of anybody who might capture our people. Q: What rules of engagement govern occasions on which United States forces would be permitted to use lethal force against enemy combatants? For instance, would they only be directly targeted when there is no possibility of capturing them? A: Do we always use lethal force as a last resort? That certainly isn’t true in a targeting sense. When we have a lawful military target that the commander determines needs to be taken out, there is by no means a requirement under the law of armed conflict that we must send a warning to those people and say, you may surrender rather than be targeted…Obviously we adhere to the law of armed conflict that relates to not targeting people who have become hors de combat, or who are swept up in an operation. Obviously, lethal action is not taken if targets or forces are not a threat to our forces and can be detained and taken out of the combat that way. Q: Do you think there is a case for revising the Geneva Conventions, in light of the new kind of conflict we have seen since September 11? A: I don’t think there is a need for revision of the Geneva Conventions. I think that the huge glaring problem in this conflict is the failure of our enemies to adhere to those fundamental principles embodied in those conventions and in the customary law of armed conflict. We believe that the existing law provides an entirely satisfactory legal framework for warfare as it occurs in the modern world, and specifically a framework for the war on terrorism. And the United States will continue to reaffirm the existing principles. What we need is better compliance with the existing laws, not new laws. And I wish there were a way that the world community could get some real traction on that problem. The fact is that these terrorist attacks that have occurred are about as far out as one can get from the existing legal regime. Focusing on small nuances that one commentator or another might think could be improved in the existing law misses the whole point that the fundamental principle of distinction between civilian and military objectives is violated wholesale by terrorists. That is the issue. Q: What measures does the United States take to ensure that people fighting alongside it – whether in Afghanistan or elsewhere – comply with the laws of war? A: We work to ensure there is respect for the law of armed conflict on the part of our coalition allies…We also not only are trained in the law of war, but as part of that training are imbued with the strong sense that it is necessary to report all possible suspected or alleged violations of the law of war, including those committed by or against our forces or persons allied with us. And we take that responsibility very seriously. In our relations with other countries, particularly coalition partners, we emphasize these values, and we address law of armed conflict issues with them as we link up with them, for example, on the applicable rules of engagement. We train with our coalition partners on adherence to the law of war, and we take seriously our requirement to report and investigate any alleged violations of the law of war. The following questions were submitted as follow-ups, and answered in an email message: Q: Is it possible to clarify at all the question of who is deemed to be a member of the enemy for the purposes of targeting or detention? Does it require some formal link with al-Qaeda or an affiliated group? When you talk about "threatening the US,", must it be a matter of actual demonstrable planning, or simply general hostile intent? Also, you said that the war is also against global terrorists who can threaten our friends and allies. Does that mean only al-Qaeda and related groups, who attack our allies inasmuch as they are our allies? What about other terrorist groups like those who attack Israel, for instance, and the states that support them? A: An "enemy combatant" is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, for example, the term includes a member, agent, or associate of al Qaida or the Taliban. The determination of who is an enemy combatant is dependent on the facts of each individual case. The authority to detain enemy combatants applies not just to armed soldiers engaged in battlefield combat, but extends to all belligerents, including any individuals who act in concert with enemy forces and aim to further their cause. An individual cannot immunize himself from treatment as an enemy combatant by attempting to extend the battle beyond the traditional battlefield. In his September 20, 2002 address to Congress, the President stated: "Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated." The war is against those terrorist organizations that have global reach and threaten the United States and its allies. Q:
Would
you be able to elaborate on your comments about when combatants
can be targeted and when they are "hors de combat", in
order to clarify what hors de combat means in the context of this
war? As I clarified in our discussion, the United States is involved in an armed conflict with al-Qaeda and other global terrorists and those who harbor and support such terrorists. As such, the law of armed conflict with regards to targeting and "hors de combat" applies in this conflict as it would in any other. A combatant is hors de combat if he is in the power of an adverse power, he clearly expresses an intention to surrender, or he has been rendered unconscious or otherwise incapacitated and therefore unable to defend himself—provided that such a combatant abstains from any hostile act and does not attempt to escape. This concept under the law of armed conflict is unchanged in the war against global terrorism. A terrorist cannot immunize himself from lawful attack by failing to identify himself as a combatant. Q: Given that questions have been raised about whether this is a war, when it will end, the scope of the battlefield, and about the parameters of who counts as an enemy combatant, and the identification of individuals as actual combatants -- is it not desirable to allow some judicial oversight of the detention regime for instance through habeas corpus in US courts? For instance, in the previous unlawful combatants case (ex parte Quirin) there was judicial oversight. I am aware of the objections you registered to the phrase "indefinite detention", but I wonder if the opportunity to challenge the legitimacy of the detention might not be required under international norms? A: Pursuant to the President’s authority under the U.S. Constitution, the military exercises the fundamental right to hold enemy belligerents during on-going hostilities. In the current conflict, the September 18, 2001 Joint Resolution (P.L. 107-40) supports the actions of the President and U.S. armed forces. U.S. law appropriately limits access to the courts by enemy combatants detained outside of the United States during hostilities to challenge their detention as enemy combatants. This does not mean, however, that such enemy combatants are without rights, but rather that the scope of these rights is to be determined by the Executive and the military, not by the courts. This reflects core constitutional principles, avoids the truly dangerous precedent of judicial second-guessing of quintessentially military decisions, and ensures that enemy litigiousness does not jeopardize the war effort or aid the enemy. In keeping with the United States’ long-standing commitment to conducting its military operations in accordance with the law of armed conflict, the President has afforded the detainees all the appropriate rights under the law of armed conflict. The President directed that all detainees be treated humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles of the Third Geneva Convention of 1949. Despite the fact that the al-Qaeda and Taliban are not entitled to Prisoner of War (POW) status under the Third Geneva Convention of 1949, they are being provided many POW privileges as a matter of policy. As I noted during our discussion, the Secretary of Defense has emphatically stated that the Department of Defense has no interest in detaining enemy combatants longer than necessary. Our military commanders carefully screen all persons before we take control over them and, as demonstrated by the recent release of several detainees from Guantanamo, we are reviewing the requirements for their continued detention on a case-by-case basis. The law of armed conflict makes no provision for judicial review of the detention of enemy combatants who are detained during hostilities solely to take them out of the fight. There is a recognition in the law of armed conflict that during hostilities, the military through its operations and intelligence-gathering has an unparalleled vantage point to learn about the enemy and make judgments as to whether those seized during a conflict are friend or foe. It would be contrary to the principles of the law of armed conflict to accord unlawful combatants a right to challenge detention based solely on their status as enemy combatants, when lawful combatants—entitled to the protections of the Third Geneva Convention of 1949—lack the right to raise such challenges. To do so would reward those who fail to comply with the law of armed conflict. Review of criminal proceedings taken against detained enemy combatants is a fundamentally different question. As you note, the trial proceedings in the Ex parte Quirin case were reviewed by the courts. But this review took place only after the conviction of the enemy combatants involved. The underlying detention of enemy combatants during on-going hostilities was never questioned. The Supreme Court explained: " Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." |