I am not surprised that Mr. Bellinger encounters resistance abroad when he attempts to defend the Administration’s detainee policy. Although it’s unfair to expect from informal remarks the clarity and precision of a legal memo, what he offers here—mainly, that the “haz[iness]” of the law applicable to those at Guantánamo and other overseas prisons justifies an ad hoc, evolving approach—is not very convincing. He echoes the strained analysis of infamous White House legal memos. He paints a distorted picture of who these prisoners are and how they were captured. And he does not address the main purpose of the policy and the reason it went so seriously awry: it is, at bottom, a botched effort to expand counter-intelligence operations.
In his remarks, Mr. Bellinger frequently mentions that the law in this area is complex; he observes, for example, that prominent scholars do not agree on whether the prisoners should be subjected to criminal process or treated as prisoners of war (“POWs”) under the Geneva Conventions. But it is odd to conclude from this, as Mr. Bellinger seems to, that the law should be ignored or selectively applied. Echoing now-familiar Administration arguments, Mr. Bellinger invokes legal authority without acknowledging the corresponding limits. He explains that the United States was authorized to detain people at Guantánamo because “[w]e are in a legal state of armed conflict with Al Qaeda,” yet the prisoners there “don’t fit under the traditional laws of war” because Al Qaeda is not a nation and lacks a conventional army. In truth, the law of war does not recognize such loopholes. Under Article 5 of the Geneva Convention (Third) Relative to the Treatment of Prisoners of War (“Geneva III”), the prisoners are presumed to be POWs, and are entitled to have their status determined, on an individual basis, by a “competent tribunal.” But even if they are determined not to be POWs protected by Geneva III, the prisoners must be afforded the protections of the Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Time of War (“Geneva IV”), including freedom from “physical or moral coercion . . . exercised . . . to obtain information from them or third parties.” In any event, all people detained during an armed conflict are protected by the fundamental guarantees of Common Article 3, a provision found in all four Geneva Conventions that prohibits, among other things, “cruel treatment and torture,” “outrages upon personal dignity,” and “humiliating and degrading treatment.” As the ICRC’s authoritative commentary on the Conventions puts it, “nobody in enemy hands can fall outside the law.”
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