(from USA TODAY, March 16, 2011)
by David B. Rivkin, Jr. and Lee A. Casey
Under the guise of “reaffirming America’s commitment to humane treatment of detainees,” the Obama administration announced last week a revolution in the rules governing how the United States protects itself from al-Qaeda and other terrorists.
Although the president has thrown a meaty bone to a determined segment of his political base — which opposed a full force, military response to the Sept. 11 attacks — with a stroke of his pen he has also made the American people less safe.
From now on, according to Secretary of State Hillary Clinton, the U.S. will comply with part of a treaty known as Protocol I Additional to the Geneva Conventions “out of a sense of legal obligation.” These are code words, which mean that the U.S. acknowledges this particular provision, Article 75, which extends ” fundamental guarantees” to any detainee, as a binding form of international law— even though the Senate has never consented to its formal ratification. Today, the Geneva Conventions include four treaties: governing the treatment of wounded soldiers on land, those wounded or shipwrecked at sea, prisoners of war and civilians in occupied territory. These agreements date to 1949 and have been ratified by more than 190 countries, including the United States.
The 1949 Conventions were drafted in response to the unprecedented horrors of World War II. In the 1970s, however, efforts were made to rewrite these treaties, expanding the rights and privileges they guarantee to “prisoners of war” to the guerilla fighters so prevalent in that era’s colonial “liberation wars.”
The U.S. flatly rejected this effort, embodied in Protocol I. President Reagan said this agreement was ” fundamentally and irreconcilably flawed” for the very reason that it gave rights traditionally reserved to the armed forces of states who obey the basic rules of war to guerrillas and terrorists, who do not. Indeed, groups such as al-Qaeda seek military advantage by rejecting rules they expect the U.S. and other civilized states to follow.
Protocol I is, in fact, a grab bag. Some of its provisions do restate customary international law — such as longstanding prohibitions on deliberately attacking civilians — but many do not. Article 75 contains both. To determine which is which, it must be measured section-by-section, often line-by-line and word-by-word, against other sources of international law and practice.
By accepting an important part of this treaty as a legally binding form of international law, President Obama has done an end run around the Senate and eliminated much of the flexibility the U.S. has to deny captured al-Qaeda and Taliban fighters the rights enjoyed by regular, lawful soldiers. The major impact of this will not merely be on those currently held at Guantanamo Bay — the legality of trial by military commission will certainly again be questioned — but also on the way U.S. forces fight al-Qaeda in the future and on how newly captured terrorists will have to be treated. It also works to legitimize the remainder of Protocol I, which would, among other things, permit terrorists to launch attacks from their hiding places among civilians without legal penalty.
If the United States must now effectively treat its terrorist enemies like honorable POWs as a matter of law, and not merely as a policy decision, this should be accomplished through the Constitution’s treaty ratification process. Then the Senate and the American people can have a full and fair debate on the matter.
The president might well have firmed up his political support as we move toward the 2012 elections, but he has done so at the cost of U.S. national security interests.
David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker Hostetler LLP.