August 12 is the 64th anniversary of the signing of the Geneva Conventions. As a candidate, Senator Obama was highly critical of the Bush Administration’s non-application of the Geneva Conventions to detained members of al-Qaida and the Taliban. His Administration came into office pledging to “abide” by the Geneva Conventions, and President Obama himself received an ovation at his Nobel Prize acceptance speech in Oslo in December 2009 for reaffirming his commitment to the Conventions. And yet, four years later, the Administration has not applied the Geneva Conventions as a legal framework to the more than one thousand detainees it has continued to hold at Guantanamo and Bagram. If the Administration has concluded the Conventions do not apply, it should work harder in the second term to explain its reasoning and to work with U.S. allies to develop alternative rules for detention in conflicts between states and non-state actors.
As a legal matter, the Administration has not chosen to treat Taliban and al Qaida detainees as Prisoners of War under the Third Geneva Convention. But nor has it treated them as “persons protected” under Article 4 of the Fourth Geneva Convention. And it has not treated them as criminal suspects under federal criminal laws. Instead, it continues to apply Common Article 3 of the Conventions, which the Supreme Court held in Hamdan apply to the conflict with al Qaida, as binding law and to apply appropriate other provisions as a matter of policy.
It surprises me that no one seems to have publicly pressed the Administration on its non-application of the Geneva Conventions. To my knowledge no Administration lawyer has ever explained whether the Third or Fourth Conventions apply to al Qaida and the Taliban. Many Europeans regularly condemned the Bush Administration for putting detainees into a “legal black hole” or “legal limbo,” but they have not leveled the same charges against the current Administration even though the Administration is applying the same legal framework.
It is no excuse for the Administration to blame its non-application of the Geneva Conventions on the Bush Administration’s prior interpretation or the “legacy” of Guantanamo. Unlike closing Guantanamo, which Congress has blocked by legislation, if the Obama Administration disagreed with the Bush approach to the Geneva Conventions, the President — or indeed, the Department of Defense — could simply have announced in 2009 that it would henceforth treat detainees as either POWs or as protected persons. Moreover, as the Washington Post recently reminded us, the Obama Administration has been operating its own Guantanamo, with hundreds of Taliban and al Qaida suspects, including newly captured suspects, detained in Bagram, so it could have applied the Geneva Conventions to the detainees there if it wanted to do so.
Although the Administration does not seem to have seriously considered applying the Third or Fourth Conventions to detained Taliban and al Qaida, early in the first term Administration lawyers conducted a two-year review to determine whether the Administration could at minimum apply Article 75 of Protocol I to the Geneva Conventions to al Qaida and the Taliban. In March 2011, the White House announced that the United States would apply the “principles” of Article 75 to “any individual it detains in an international armed conflict.” After Jack and I noted that in Hamdan the Supreme Court had concluded that the conflict with al Qaida is a “non-international armed conflict,” White House officials quietly confirmed that the Administration did not intend to apply Article 75 to members of al Qaida and the Taliban. Hence, the White House announcement was essentially a null set.
In at least one case, the Administration apparently decided not to “abide” by the Geneva Conventions when the U.S. military held Ahmed Abdulkadir Warsame on a navy ship off of Somalia for two months, in contravention of Article 22 of the Third Convention, which states that prisoners of war “may be interned only in premises located on land.” Presumably, Administration lawyers concluded the Conventions do not apply, that Warsame was not a POW, or that he was not being interned.
So, why the failure to apply the Geneva Conventions to al Qaida and the Taliban? If Administration lawyers thought they were actually legally obligated to apply the Conventions, I am sure they would have done so. Instead, presumably they have decided after a careful review that the Conventions — which apply to conflicts between states that are party to them — do not apply as a matter of law and that the Administration, for political reasons, does not want to announce that it is applying them as a matter of policy (even if most provisions are being observed in practice).
All of this suggests to me that, after four years, Obama Administration officials have found that the law applicable to a conflict between a state and non-state actors like al Qaida and the Taliban is more complicated than they thought. My former colleague Vijay Padmanabhan and I laid out some of the legal complexities and suggested solutions in an article two years ago entitled “DETENTION OPERATIONS IN CONTEMPORARY CONFLICTS: FOUR CHALLENGES FOR THE GENEVA CONVENTIONS AND OTHER EXISTING LAW.” In 2004, the 9-11 Commission recommended that the United States “engage its friends to develop a common coalition approach toward the detention and human treatment of captured terrorists” — a recommendation the last Administration followed in its second term. I would now hope that, in its own second term, the Obama Administration would engage its allies to address these same challenges and help clarify legal principles for use of force (including by drones) and detention in conflicts between states and non-state actors.