Wednesday, January 05, 2005


Memos on Geneva

The New York Times has a helpful page of links, which points to memos regarding the legal case for suspending the Geneva Conventions for Taliban and Al-Qaeda detainees. These memos give us the most complete picture we have had so far of how the Bush administration rationalized the decision that prisoners in the War on Terror are not legally entitled to Geneva protection. Below are links to a few of the most important memos (PDF), for those not registered with the Times.

Before the links, a few comments. First, there is much in these memos that strikes me as sophistry. Perhaps you will also be so struck upon reading them. But consider the glass half full: the freedom of information in this country is quite a remarkable thing. Yes, there are many decisions made behind the closed doors of our government, far away from prying eyes. Many bits of information fall down the memory hole, the victims of forgetfulness, bureaucracy, or deliberate deception. Many more things are blotted out by black markers or shielded from our eyes by layers of security clearances. But I'm thankful for this: To a degree that really does matter, we are allowed to witness the sophistry and error of our officials with our own eyes.

So however distressing the contents of these memos (and let me stress that I find them distressing), it is reason for hope that we can view, with a click of a button, the regrettable rhetoric and logic of our representatives and their counselors. We can pull off the emperor's clothes, and see for ourselves the naked truth about what lies underneath. For instance, we can now critique the photographic case that Colin Powell made for the Iraq war before the UN. (See the last section of Malcolm Gladwell's recent New Yorker article: "The Picture Problem.") But at least we have the photographs to criticize. I'm glad I can actually see my governmental officials presenting bad arguments or using misleading rhetoric, if only because I don't have to wonder if their reasons are faulty: I can know for sure that they are.

That's the glass half full. The half empty version is this. These memos confirm that the Bush administration does not consider itself bound by international laws of war in its current "War on Terror." Why? Because this war is different. That's the gist of many of the memos, and the argument is not much more sophisticated than that. The "War on Terror" is different because the enemy is not a nation-state, and the Geneva Conventions were written with nation-states in mind. (I've discussed this argument about "different" wars before, and if I could say it all over again, I would. In fact, I think I will.)

There is also a simple point that needs to be made again and again. The Bush administration's rhetoric about the character of this "War on Terror" has been extremely flexible and slippery from the beginning (and that's being charitable). In making the case for war with Iraq and Afghanistan, it served the President's argument to contend that terrorists need state support, and that prosecuting the "War on Terror" meant, first of all, treating the nation-states that harbored terrorists with the same severity with which we would treat terrorists. This is why Afghanistan was very clearly treated as a "nation" in the President's speeches and directives leading up to our invasion. See this radio address from October 2001, for instance, which also includes this paragraph: "Even as we fight evil regimes we are generous to the people they oppress. Following World War II, America fed and rebuilt Japan and Germany, and their people became some of our closest friends in the world."

On its face, this kind of rhetoric suggested a parallel between the situation in Afghanistan (a nation where an evil regime was oppressing its people, whom we would help by dropping food along with the cluster bombs) and the situation in postwar Japan and Germany (again, clearly nations where evil regimes had oppressed their people, whom we also fed and helped out once the smoke and mushroom clouds had cleared). Leading up to the invasion of Afghanistan and Iraq, the President's rhetoric portrayed the "War on Terror" as necessarily a war against states, because he knew that to characterize it this way made possible analogies that resonate powerfully in American memory. Most Americans tend to think of pretty much all of our inter-state wars as just. The ones we still have collective problems rationalizing are the quagmires with the insurgencies, the police actions, and the Civil War, whose ambiguous status (a rebellion? a war between two States? a war between more than two states?) explains why the shouting about it is still not over yet.

In rhetoric and public reasoning before the wars in Afghanistan and Iraq began, states were loosely portrayed as our enemies. Al-Qaeda, of course, was never considered a nation-state, but even it had to be linked rhetorically with states, in order to make a war against it "thinkable" for the American public. And so it was that analogies were even drawn between the "War on Terror" and World War II, the very context in which the Geneva Conventions were devised.

Yet now the analogy between World War II and this war, this fundamentally new war, is rejected by the same administration as spurious. In making the case for deciding that detainees in the "War on Terror" are not legally entitled to the Geneva Conventions (as German or Japanese soldiers would be), the President's rhetoric and reasoning dramatically shifted. This was not an interstate war, but a war against a non-state actor.

One might argue that this contradiction in rhetoric is not a contradiction at all. By the Bush administration's logic, Iraqi soldiers (as uniformed members of a nation-state) are entitled to Geneva protection, while Al-Qaeda fighters (as non-state actors) are not. (Hey, all you have to do is look at their clothes to decide if they can legally be tortured or not. Wait ... not exactly.) But if Al-Qaeda fighters were not part of the Iraqi state, or the connection was so weak that they cannot be said to have been in the service of the Iraqi state, then the case for the war against Iraq as a battle in the "War on Terror" crumbles. On the other hand, if Al-Qaeda was receiving the kind of support from the Iraqi state that would warrant going to war against Iraq for that reason (if they were really "in the employ" of the state, so to speak), then the case for suspending the Geneva Conventions crumbles.

Either there was little enough daylight between Al-Qaeda and states to justify going to war against the one as a battle against the other; or there is enough daylight between them to justify treating detainees from each entity differently. The Bush administration has to pick one of these disjuncts, and picking either means denying the other. One half of its rhetorical armature is vulnerable.

Even if the administration wanted to pick one way now, it may be too difficult to do. Indeed, despite the ease with which the memos below talk about the distinction between states and non-states, the distinction on the ground is much messier. What are "Baathists," for instance? State actors, since the Baath Party was, more or less, the state under Saddam? Rhetoric about the Baathists frequently blurs the line between the party as a sub-state entity, and the party as the state itself, the regime we went to war against. Now that the state has crumbled, are Baathists and former Iraqi soldiers who have become insurgents "non-state" actors? (This problem points out especially well how the Bush administration holds all the rhetorical cards in its hands. You call the Iraq war a war against a state. Then you declare that war, that conventional war, finished before it actually is. Suddenly, any remaining combatants are not conventional anymore. That's why this game of sophistry, of defining war, is potentially, if not actually, insidious.)

It is the simplest of all shell-games. Now you see it (the war is a conventional "state" war), now you don't (the war isn't a conventional "state" war), now you do (it was a "state" war, but now that part is over). Ridiculously transparent, when you think about it, even to an ordinary civilian like myself. Perhaps I'm oversimplifying things, or caricaturing the President's arguments. If so, I'd value your corrective comments. But either way, read the memos below, and at least be glad you can.

* * *

January 9, 2002: Memo from John Yoo, a law professor working for the Department of Justice, on the legal justification for concluding that the Geneva Conventions did not protect members of the Taliban or Al-Qaeda. The gist of Yoo's argument is that the framers at Geneva only had in mind nation-states as the "High Contracting Parties" to the agreement. Entities like the Taliban or Al-Qaeda were not envisioned.

January 25, 2002: Memo to the President from Alberto Gonzales, then White House counsel and now the President's nominee for Attorney General, concurring with Yoo's memo. Gonzales especially drives home the point to the President that this war is a fundamentally different kind of war, which renders many provisions of the Geneva Conventions outdated. New rules will have to be devised. Gonzales outlines some of the pros and cons of making the decision to suspend Geneva, but he dismisses arguments against the move, particularly those voiced by Colin Powell. Among the possible cons considered is the possibility that "concluding that the Geneva Convention does not apply may encourage other countries to look for technical 'loopholes' in future conflicts to conclude that they are not bound by [the Convensions] either," which effectively characterizes the Department of Justice's own case as a kind of technical "loophole." Gonzales also stresses to the President that the legal issue with regard to the Geneva Convention is in some ways insignificant, since the President has and will direct the armed forces to follow the spirit of the Convention as much as practicable. So even if the detainees are not technically entitled to that humane treatment, surely they will receive it. (Abu Ghraib and GTMO, of course, open that confidence to question.)

January 26, 2002: Memo to Gonzales from Colin Powell, strongly objecting to the draft of Gonzales's memo, both in its form and its specific content. Whereas Gonzales contended, for instance, that the United States had suspended the Geneva Conventions in Panama, Powell emphasized that such a step had never been taken. Announcing a suspension of the Conventions in an armed conflict would be an unprecedented step, and one that would be especially injurious to our diplomatic relations with allies.

February 7, 2002: President Bush's memo, which accepts the Department of Justice's finding that Al-Qaeda does not fall under the Geneva Conventions because it is not a state, and which further accepts that he has the authority to suspend the Conventions with regard to the Taliban. He declines the right to do so in the case of the Taliban, but keeps the authority in reserve for the future.

The President's memo is clearly marked by traces of Yoo and Gonzales. It argues that terrorism calls for "new thinking in the law of war." And this new thinking includes, according to the President's memo, rejecting the application of the Geneva Convention to detainees. Nonetheless, it concludes:
Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our Nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
Don't ask me why he capitalized "Our Nation," unless to emphasize to anyone else contemplating a Geneva Convention "loophole" that we are for sure a Nation-State, capital "N," capital "S."

Minor revisions on 6 January 2005.

Collective Improvisation:

Post a Comment

Back to Main Page

Site Meter