Wednesday, June 10, 2009

From Vietnam to Abu Ghraib - The Dangerous World of Indefinite Detentions


Where you find administrative detentions, you are likely to find torture. The reason is simple and can be traced to the elements of administrative detention itself: the absence of human rights safeguards and normal legal guarantees such as due process, habeas corpus, fair trial, confidential legal counsel, and judicial review; vague and confusing definitions, standards, and procedures; inadequate adversarial procedural oversight; excessive Executive Branch power stemming from prolonged emergencies; and the involvement of the Central Intelligence Agency (“CIA”) or other secret, thus unaccountable, Executive Branch agencies .

Without such protections, justice does not work and human rights are jeopardized. As William F. Schultz, Executive Director of Amnesty International, put it:

“…we are witnessing the orchestrated destruction by the United States of the very basis, the fragile scaffolding, upon which international human rights have been built, painstakingly, bit y bit by bit, since the end of World War II.”

The system was been intentionally broken by the Bush Administration, just as it was by the Johnson and Nixon Administrations during the Vietnam War.

Few legal scholars or government officials have discussed the historically established connection between administrative detentions and torture. The subject only came into public consciousness with the revelation that U.S. soldiers were torturing terrorist suspects at Abu Ghraib Prison in Iraq, Bagram Airbase in Afghanistan, and the detention facilities at the U.S. Naval Base in Guantanamo, Cuba. Since then, American and foreign journalists and human rights activists began to raise suspicions, subsequently borne out, that U.S. soldiers and CIA officers were routinely torturing terrorist suspects at numerous detention centers around the world.

The Vietnam detention procedures provide a clear and compelling flow chart of the web of connections between administrative detentions, intelligence laws, national security courts (i.e. courts intended to deal exclusively with national security concerns), violations of international law (particularly the Geneva Conventions), and torture. These components now also appear in U.S. law and policies in the War on Terror.

The Phoenix Program and the War on Terror

In June 1967, the CIA launched a screening, detention, and interrogation program in Vietnam that was a major building block of what eventually became known as “the Phoenix Program.” By the end of the Vietnam War, Phoenix had become notorious for its paramilitary death squads, which claimed between 20,000 (according to the CIA) and 40,000 (according to the South Vietnamese) lives.

Seldom, however, has Phoenix been recognized for the huge detention and interrogation facet that enabled the CIA to compile computerized blacklists of suspected terrorists. As in Iraq (and the unknown “black sites” where so-called “ghost detainees” are held), where the U.S. does not keep track of civilian deaths, it is not known how many innocent people were caught in the Phoenix dragnet. It is only known that Phoenix led to the torture and murder of many, possibly thousands of innocent Vietnamese people.

The basis for the screening, interrogation, and detention aspect of Phoenix was established in 1956, when the fledgling Government of Vietnam issued Ordinance 6, which provided for the administrative detention of “security offenders.” Ordinance 6 was succeeded by several Decree-Laws and Ministerial orders, the most significant being the 1965 “Emergency Decree Law 3/65.” This law provided for “administrative detention of persons considered dangerous to the national security, without court hearing.” The detention orders were referred to as “An Tri.”

Today, the War on Terror has engendered three American detention “laws” to deal with the new enemy of the twenty-first century. These resemble An Tri detentions in numerous and various ways as discussed in the next section and the remainder of this paper. These “laws” are: Section 412 of the PATRIOT Act, which provides for mandatory indefinite detention of aliens considered dangerous to national security, the presidential Military Order of November 13, 2001 (and the accompanying Military Commissions procedures), and the presidential designations of so-called “unlawful enemy combatants.”

Through his Military Order, Bush granted himself extraordinary powers to identify al Qaeda members and those who harbor them, and to detain these people without review by the judicial or legislative branches of government. The subsequent Department of Defense Military Commissions Order No. 1 (“MCO) was the “enabling law” that put the Military Order into effect. Finally, there came Bush’s “unlawful enemy combatant” (“UEC”) designations of United States citizens, designations not based on his Military Order but potentially triable under the MCO.

In addition to the lack of due process, the main theme of these laws is overarching executive power. In none of them are the incarcerations judicially imposed or based on proof of criminal activity that would be admissible in a court of law. In each, an official of the Executive Branch has near-complete unilateral authority to determine who is detained and for how long. Those held under Section 412 are subject to periodic review by the Attorney General and his determinations are appealable only to the United States Court of Appeals for the District of Columbia. Those subject to the Military Order may not appeal to any court of law, including international courts. The Administration claimed that those held under Bush’s unlawful enemy combatant designations had neither due process nor habeas corpus rights.

More than anything else, it is this theme of near-absolute, unreviewable executive authority that has the potential to bring Phoenix home to roost.

During the Vietnam War, the Phoenix Program coordinated the paramilitary and intelligence components of some two-dozen counterinsurgency programs in an attempt to "neutralize" the “Vietcong infrastructure” (“VCI”). The euphemism "neutralize" meant to kill, capture, make to defect, or turn members of the “infrastructure” into double agents. The word "infrastructure" referred to civilian members of the “shadow government” that was managing the insurgency in South Vietnam. In other words, the Vietcong or VCI.

Members of the infrastructure were referred to as “national security offenders” no matter what their ideology; but if they were members of the Communist Party, they were also referred to as “Communist Criminals,” insofar as Communism had been outlawed and was a separate crime of status. Screening virtually everyone in South Vietnam, and then detaining and interrogating suspects, was the systematic way the CIA sought to identify members of the VCI.
While no extant copy of Emergency Decree 3/65 has been located, a later renewal of the law, issuing from the State Department’s Agency for International Development, “continues the emergency power of the Executive [of Vietnam] to temporarily detain people considered to constitute a danger to the National Security by publicizing or carrying out Communism in any form.” Temporarily meant two years, renewable “if the offender is considered still to constitute a danger.”

Screening, detaining, and interrogating suspects was also how the CIA produced informants, defectors, and double agents. Capture of VCI was the object. But VCI of “high value” (a Phoenix term recently exhumed by the CIA and used in the War on Terror and in Iraq), were usually accompanied by bodyguards, so midnight assassinations and ambushes of high value VCI was the most common form of exploitation of the intelligence gathered through informants, defectors, double agents, and interrogations.

Under the An Tri administrative detention emergency decree, due process was totally non-existent for suspected members of the VCI . People whose names appeared on Phoenix blacklists were subject to midnight arrest, kidnapping, torture, indefinite detention, or assassination, simply on the word of an anonymous informer. After capture and interrogation, if they were still alive, they were tried by “special courts” or military tribunals not unlike those proposed by Bush that were not staffed by legally trained judges. As one official document noted: “In the Special Courts which act in terms of special laws, criminal procedures are reduced to a strict minimum.” There was “no preliminary investigation although the offense is of a criminal nature” and no appeal. The judges could not “pronounce extenuating circumstances, suspend action, nor punishment under the set minimum.” As a result, “the principle of individualization of punishment cannot apply, which is in flagrant contradiction with the concept of justice and responsibility.”

Legally unobstructed by the concepts of justice and legal responsibility, the CIA was the hidden force behind Decree 3/65 and its special courts, just as it was the hidden force behind the Phoenix Program. Likewise, the CIA is one of the hidden forces behind the reconstruction of Iraq’s Ministry of Interior, secret police forces, and judicial system, and the interrogations of detainees at various detention centers.

To escape responsibility and ensure “plausible deniability,” the CIA in Vietnam concealed the detention aspect of Phoenix under cover of the U.S. military/civilian administration in charge of the reconstruction of South Vietnam. The Vietnamese army and police Special Branch, along with U.S. military forces, provided the bulk of manpower and facilities used to “screen” detainees for the CIA, in the same way the CIA and military intelligence today train locals to apply Pentagon-mandated procedures to screen terrorist suspects abroad and maintain military control of prisons in Iraq and Afghanistan.

The CIA built Phoenix operations centers in each of South Vietnam’s 240 districts, in order to secretly identify and neutralize VCI. Often, the CIA relied on the type of heavy-handed military sweeps now being conducted in Iraq. These sweeps invariably filled makeshift detention centers (barbed wire cages with tin roofs) with innocent old men, women and children, since the actual VCI had penetrated the government’s military and police security services and often knew when the sweeps were coming. As in Iraq today, active insurgents were often better able to evade capture than innocent persons.
By its own admission, the CIA had no effective procedure of distinguishing actual “national security violators” from innocent people—an innocent person perhaps being, for example, a rival businessmen being blackmailed by the local Province Chief.

In all, the interrogation and detention centers there had substandard living conditions and indiscriminate crowding of POWs, common criminals, and VCI suspects. There was no way of knowing who should be interrogated, jailed, or released.

Like the administrative detentions under the PATRIOT Act and Bush’s Military Order, the Vietnamese-staffed military tribunals and security committees that heard cases could repeatedly delay someone's “trial.” An Tri hearings could be delayed for up to two years or more—usually until the proper bribe was paid. When brought to trial, a person was unlikely to have a lawyer, which did not really matter, as there was no due process, no habeas corpus, and no need of evidence to convict.
The CIA’s abuses could not be hidden forever and eventually pressure from the Red Cross and liberal American Congresspersons forced the CIA to confront the same legal questions about detainees and “enemy combatants” (a designation that implies guilt before any is proven) that are now finally being raised.

Detentions Under Present-Day Federal Law

The detention provision of the PATRIOT Act added a provision to the Immigration and Nationality Act (INA), mandating that the Attorney General “shall take into custody any alien who is certified” by him. Earlier immigration law allowed for continued detention only when an alien was a danger to the community or flight risk.

An alien may be certified if the Attorney General “has reasonable grounds to believe” that the alien has engaged in any one of a great number of listed prohibited activities. The problem, of course, is that here, just as in the An Tri procedures, there is only limited judicial review of these certifications.

Once an alien is certified, “the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. . . . irrespective of any relief from removal for which the alien may be eligible.” While Section 412 requires that an alien who has not been removed or charged with a crime within seven days “shall [be] release[d],” a person “whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months . . . if the release of the alien will threaten the national security of the United States or the safety of the community or any person.” The Attorney General “shall review” the certification every six months.

The result, of course, as with the An Tri detentions, is that “[b]y the use of repeated extensions a suspect can be detained indefinitely” without ever having any sort of genuine due process hearing.

What we do not yet realize is that the precedents set by the PATRIOT Act administrative detentions of aliens not only could be expanded to include citizens, but already have been—by the President’s unlawful enemy combatant designations. The concern is not that a few innocent aliens may be indefinitely detained but that this could lead to the indefinite administrative detention of anyone who criticizes the government.

The crimes under the national security laws of the Republic of Vietnam during U.S. occupation are ominously similar to those under the alien terrorism provisions of the PATRIOT Act. Both sets of laws were intended to address acts that threaten the public safety and/or national security but neither provided for criminal prosecution, procedural due process, or Sixth Amendment-type protections. Both involved indefinite detentions.

National security and foreign intelligence concepts are central to the rationale for indefinite administrative detentions. It is these concepts that prompt or even compel the creation of detention programs that, by definition, must evade constitutional and human rights requirements. Administrative detentions are national security detentions.

Proponents of administrative detentions claim that administrative detentions are the humane alternative to dealing with national security and foreign intelligence issues—the other way being assassination. Criminal trials are viewed as inadequate. Thus, it is important to look at the definitions of these concepts.

Provisions of the PATRIOT Act, other than Section 412, where national security is a key concept are those that relate to foreign intelligence. The concept of foreign intelligence is the bridge that has permitted national security detentions to be written into our federal law. Where in South Vietnam such detentions were permitted due to insurgency, national emergency, and war fought within that nation’s borders, now they are permitted in the United States because of an amorphous (congressionally undeclared) “War on Terror” fought everywhere.

U.S. officials since 9/11 have repeatedly stated that terrorism is an utterly new animal, that we are fighting a new kind of war, but this is exactly what officials said about Vietnam. The U.S. has always perceived a need for foreign intelligence, and the two (terrorism and foreign intelligence) have now become inextricably intertwined in our laws. Where foreign intelligence used to be gathered by spying overseas (or on foreign powers and their agents who were here in the U.S.), which was exclusively an Executive Branch function, foreign intelligence investigations since 1978 have been regulated by the Foreign Intelligence Surveillance Act, or FISA, and a special, secret federal court called the FISA Court or FISC, that reviews applications to spy domestically.

While FISA was enacted in order to curb indiscriminate and unreviewable Executive Branch surveillance, the law has led gradually to the very dangerous mixing of criminal law (which provides for the usual constitutional protections) and foreign intelligence law—i.e. FISA (which does not). It has also led to the interchangeability of the terms foreign intelligence investigation, terrorism investigation, and national security investigation. In other words, anything that can be linked to a terrorism investigation is a national security investigation, which naturally involves foreign intelligence. A national security investigation may or may not involve terrorism, but will likely involve application of FISA.

Just about anything can be linked to national security. And once linked, the lowered constitutional standards of FISA kick in. This opens the door for almost anybody to be investigated and, when considered alongside the detention provision, for almost anybody to be detained.
Again, while the PATRIOT Act detention provisions are intended to permit detentions of only aliens who are thought to be national security risks, it is clear that these provisions set a precedent for government detentions of innocent dissenting citizens and can be extended to those who merely disagree with the government. Indeed, with police actions and prosecutions against grass roots activists increasing, some might argue it is already happening.

A closer look at the definitions of foreign intelligence and national security reveals some ominous threads. Oddly, national security is not defined in FISA (which is, of course, the law that most deals with issues of national security). Rather, it is defined in the immigration laws relating to excludable and removable aliens. National security is there defined as “the national defense, foreign relations, or economic interests of the United States.” Something as routine and legally permissible as a workers strike at a Coca Cola plant in Colombia could be construed as a threat under this definition.

Although national security is not defined in FISA, “threats to national security” are set forth in FISA in provisions which establish the basis for coordination between intelligence and law enforcement. These provisions use the identical language as that used in defining foreign intelligence information, discussed in the next paragraph.

Foreign intelligence information (and therefore a “threat to national security”) is:

[I]nformation that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.

This type of foreign intelligence information is sometimes called “protective” or “counterintelligence” information. It requires the type of activity we usually think of spies engaging in.

A second definition of foreign intelligence information in FISA includes information relevant or necessary “to the national defense or the security of the United States” or “the conduct of the foreign affairs of the United States.” According to the FISA Review Court: “This definition generally involves information referred to as ‘affirmative’ or ‘positive’ foreign intelligence information rather than the ‘protective’ or ‘counterintelligence’ information . . . .” This type of intelligence is a much vaguer, more expansive type of information. Just about anything could be relevant to the national defense or conduct of foreign affairs. Indeed, by this definition, the Phoenix Program was a foreign intelligence operation, designed ultimately to identify the managers of the insurgency in North Vietnam.

With either type of intelligence, it is important to remember that such information is gathered for the purpose of protecting the interests of the nation, not for bringing criminal prosecutions. This distinction is important when you consider that intelligence information is not protected by the Fourth Amendment probable cause requirement. In other words, those gathering information under a foreign intelligence investigation do not have to provide a judge with evidence of probable cause of criminal activity in order to obtain a warrant, although information obtained via a FISA warrant can nonetheless be used in a criminal prosecution.

The FISA Review Court, convened for the first time in history in 2002 to review a FISA Court decision on the interpretation of the PATRIOT Act provision relating to the proper standard for FISA warrants, noted that certain FISA definitions do require criminal activity. While FISA does not require probable cause of criminal activity, it does require probable cause that the target is a foreign power or an agent of a foreign power. Thus, the FISA Review Court noted:

The definition of an agent of a foreign power, if it pertains to a U.S. person . . . is closely tied to criminal activity. The term includes any person who “knowingly engages in clandestine intelligence gathering activities . . . which activities involve or may involve a violation of the criminal statutes of the United States,” or “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor [sic].”

While the Court draws much of its subsequent analysis from its observation that foreign intelligence warrants do, after all, relate to criminal activity, it nonetheless notes that: “The term ‘foreign power,’ . . . is not defined [in FISA] solely in terms of criminal activity. For example, although the term includes a group engaged in international terrorism, which would involve criminal activity, it also includes any foreign government.” Thus, even if criminal activity does underlie some FISA warrants, FISA does not require proof of such activity (rather it assumes it), and the predetermined underlying criminal activity inherent in the definition is no justification for allowing a lack of probable cause of criminal activity standard in cases that eventually become criminal prosecutions. Exactly the opposite, one would think.

Astonishingly, the FISA Review Court itself acknowledged that the constitutional question of whether FISA strikes the right balance “has no definitive jurisprudential answer” and that “to the extent a FISA order comes close to meeting [the requirements of federal criminal law], that certainly bears on its reasonableness under the Fourth Amendment.” In any case, they declined to decide the issue. The Court concluded that “the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.”

Military Commissions and Unlawful Enemy Combatants

Bush cited Congress’ September 18, 2001, Authorization for Use of Military Force (“AUMF”) and his authority as Commander-in-Chief to justify his Military Order of November 13, 2001.

The AUMF authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

It took the Department of Defense four months to establish procedures for military tribunals. On March 21, 2002, it issued Military Commission Order No. 1 (“MCO”) providing “Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism.”

However, in the meantime hundreds of men had already been held in indefinite detention at Guantanamo, Abu Ghraib and other locations, and, as has become increasingly clear from news reports, untold numbers had already been tortured and in some cases murdered at the hands of their captors.

In any case, certification under the Military Order did not work well enough. Although it provided for written certification of al Qaida terrorists, by the time the MCO was issued, Defense Department officials “indicated they would hold the Guantanamo prisoners indefinitely and on different legal grounds” than the Military Order provided for—“as ‘enemy combatants’ in a war against the United States.”

The reason was apparently that “intelligence officers began reporting back to the Pentagon that they did not have enough evidence on most prisoners to even complete the [certification] forms” required by the Military Order. Thus, where there was not enough evidence to detain under the Presidential Military Order certification process or for that matter to detain on pending criminal charges, new, different legal grounds, based solely on the President’s determination—the unlawful enemy combatant designations—were simply substituted.

The enemy combatant designations have been applied to both non-citizen detainees at Guantanamo and to several American citizens being detained at military brigs in the United States. The Administration argued that enemy combatants had no due process or habeas corpus rights whatsoever. The Supreme Court disagreed, handing down its landmark decision in Hamdi v. Rumsfeld, in which the Court ruled that a U.S. citizen enemy combatant captured on a battlefield abroad in combat against U.S. forces was entitled to have his status determined by a neutral decision maker. The same day the Hamdi decision was handed down, the Court also decided in Rasul v. Bush that Guantanamo detainees also had some due process rights and a habeas corpus right to file in any U.S. federal court. The Rasul decision led to the Defense Department establishing the “Combatant Status Review Tribunals” (“CSRT”), which some feel fail to satisfy even the minimum standards of due process required either by Rasul or Hamdi.

Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War (also called the Third Geneva Convention and often abbreviated “GPW”), states: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” are POW’s, “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

Until after the Supreme Court decision in Rasul, President Bush refused to accord detainees the protections of POW status or even to afford them any status hearing at all. Similarly, in Vietnam, officials declared that Geneva Common Article 3, common to all four of the Geneva Conventions, applied “only to sentencing for crimes and [did] not prohibit a state from interning civilians or subjecting them to emergency detention when such measures are necessary for the security or safety of the state.”

Common Article 3 prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Article 3 has, according to one commentator, “been described as ‘a convention within a convention’ to provide a general formula covering respect for intrinsic human values that would always be in force, without regard to the characterization the parties to a conflict might give it.”

However, as with the Bush Administration, so during Vietnam, “the United States and South Vietnamese Governments . . . agreed that humanitarian treatment must be accorded to all persons,” and ultimately, when its hand was forced, the U.S. acknowledged that there were “aspects of the ‘an tri’ procedure [that] raise[d] some problems which give us concern.” Officials testified, however, that the procedures were being improved to “accord with fundamental concepts of due process, and to improve the conditions of internment.”

By 1971 the United States Military Assistance Command in Vietnam (“MACV”) had instituted screening procedures to precede the detention proceedings. Like the screening procedures in use now at Guantanamo, it is doubtful whether these procedures satisfied Geneva’s requirements.

In 1966, MACV first issued a directive pertaining to the determination of POW status. Under this directive, identifiable North Vietnamese Army and Vietcong fighters were accorded POW status upon capture. For all others, a screening procedure was employed. So-called “Combined Tactical Screening Centers” were “activated.” Screenings were to be conducted at the “lowest echelon of command practical.”

According to Congressional Research Service attorney Jennifer Elsea, “the first implementation of written procedures for . . . tribunals” under Article 5 of the Third Geneva Convention since Geneva’s signing in 1949, was set forth in this 1966 MACV directive. However, it is clear that, in fact, the directive grew out of official intent to evade Geneva’s requirements while satisfying Congress that the U.S. was trying to comply “despite the anomalies created by attempting to apply rules essentially designed for a World War II situation to one involving a political, subversive infrastructure.”

All detainees were to be classified as either prisoners of war or non-prisoners of war. Non-POW’s were either civil defendants, returnees, or innocent civilians. Returnees were persons who, regardless of past membership in any combat force, voluntarily submitted to the “control” of the Government of Vietnam. Civil defendants were not entitled to POW status but were subject to trial for offenses against Vietnamese laws. These included spies, saboteurs, and terrorists.

Detainees were defined as “[p]ersons who have been detained but whose final status has not yet been determined.” This rule, as Valentine’s book reveals, did not describe reality, as persons who might meet any of the classifications, including POWs, could be and routinely were detained indefinitely and tortured during that detention.

The directive declared that “[s]uch persons are entitled to humane treatment in accordance with the provisions of the Geneva Conventions” as if the declaration brought the U.S. fully into compliance with Geneva and made further compliance unnecessary. Those who were not regular North Vietnamese or Vietcong soldiers—in other words, “irregulars”—were accorded POW status, if caught in combat and not engaging in terrorism, sabotage, or spying. Such irregulars included: guerrillas, self-defense forces, and secret self-defense forces.

Although the MACV directive does not so state, evidently those who were not obviously POWs were given a status determination hearing. According to Elsea, “those not treated as POWs were treated as civil defendants, and were accorded the substantive and procedural protections” of Geneva. Again, however, we know that many of these civilian defendants languished interminably in the An Tri prisons.

In determining status, “[e]xploitation of human sources, documents, materiel [sic], and other intelligence requirements incident to the effective screening and classification of detainees will normally be accomplished by intelligence personnel of the participating elements” and “[m]aximum use must be made of interrogators and interpreters to conduct initial screening and segregation at the lowest possible level.”

These threshold procedures appear to resemble those used by the Bush Administration since Rasul. The MACV directive notes that the “detaining unit” was to “insure that the proper documentation [was] initiated and maintained on every individual” and that “data reflect circumstances of capture and whether documents o[r] weapons were found on the detainee.” The hearings were clearly one-sided, weighted in favor of detention, and assumed accuracy of intelligence and the detaining unit’s documentation. No provision appears to have been made at these screening hearings for the detainee to present evidence in his favor, for legal representation, proper standards of proof, or other traditional due process protections.

Combatants in War on Terror

Guantanamo screening procedures came about, like those in Vietnam, only after public clamor and two Supreme Court decisions: Hamdi and Rasul. But, despite these two rulings, government attorneys continued to argue that although detainees may have a right to some due process in challenging their detentions, all the process that was due was “a right to appear before a panel set up entirely within the military, run by officers, under rules that allow the detainee no lawyer and no assurance of access to all the facts about their capture and detention.” The combatant status review tribunals (“CSRTs”) were purportedly erected to satisfy the Supreme Court’s dictates, but Amnesty International expressed its opinion that “the CSRT process may have been devised as an attempt by the government to narrow the scope of any judicial review.”

Senator Patrick Leahy noted that the Administration established the CSRTs “only after being rebuked by the Supreme Court in Rasul v. Bush,” and the procedures only “affirmed the ‘enemy combatant’ status of the Guantanamo detainees based on secret evidence to which the detainees were denied access, raising serious questions about the fairness of the process.”
Although news reports revealed a massive lack of adequate procedures and guidance for interrogations at Abu Ghraib, little has been reported about the screening, detention, or trial procedures. Some of the procedures used in the Iraq war theater are detailed in documents obtained from the Department of Defense by the American Civil Liberties Union via a Freedom of Information Act request.

According to one undated (ca. 2003-04) document titled “Detainee Process,” if a detainee was determined (by what method, the documents do not say) to have high “intelligence value,” he would immediately be transferred to the “Division Central Collection Point” in Tikrit, Iraq. If he was determined to have no intelligence value “from and/or through interrogations,” he would be “tried for the violations listed,” apparently at the regional “collection point.” Proceedings were conducted “based on a summary courts martial model.” If the detainee had no intelligence value and was not found to have committed any other violations, he was released. Reasons for delay in a detainees transfer or release was generally missing or incomplete information.
A flow chart for “Detainee Processing” at Tikrit, Iraq, lists the steps to be followed: individual detained, capturing unit complete paperwork, detainee arrives at one of the regional collection point detention facilities, detainee is screened “by CI,” packet is completed. If a detainee had “intel value” or otherwise warranted further detention, he was sent to the Division Central Collection Point in Tikrit.

At Tikrit, detainee screening was conducted only at “three designated interrogation tents.” One side was to be kept open at all times unless there was a military police officer inside.

One officer explained to superiors that detainees are most susceptible during the first few hours after capture:

The prisoners are captured by Soldiers, taken from their familiar surroundings, blindfolded and put into a truck and brought to this place (Abu Ghraib); and then they are pushed down a hall with guards barking orders and thrown into a cell, naked; and that not knowing what was going to happen or what the guards might do caused them extreme fear.

Detainee categories in the Iraq theatre are very similar to those in Vietnam. Category I is high level enemy prisoners of war (“EPWs”), detained persons, civilian internees, including “black list individuals,” suspected war criminals, and “violators of UN Resolutions whose broad or specific knowledge makes it necessary for them to be questioned without delay by specially qualified interrogators or debriefers.” Category IA are mid-level EPWs, detained persons, civilian internees, including:

[G]rey list individuals whose broad or specific knowledge of regional and national level Ba’ath Party and Fedayeen activities, leadership and cell structure, identities of members, recruiting, intelligence capabilities, financing, training, planning, communications and/or locations, makes it necessary for them to be questioned without delay by operationally focused interrogators. Also includes persons suspected of affiliation with terrorist organizations, foreign intelligence services and foreign fighters.

Both Category A and A1 detainees are transferred immediately to the Task Force Central Collection Point in Tikrit. Category A1 detainees are processed and thereafter transferred to the Coalition Interrogation Facility at Baghdad Airport.

According to one army investigation: “At first, at Abu Ghraib and elsewhere in Iraq, the handling of detainees, appropriately documenting their capture, and identifying and accounting for them, were all dysfunctional processes, using little or no automation tools.” The senior investigating officer, Anthony Jones, noted, “When policies, SOPs [standard operating procedures], or doctrine were available, Soldiers [sic] were inconsistently following them. In addition, in some units, training on standard procedures or mission tasks was inadequate.” However, Jones added, “In my assessment, I do not believe that multiple policies resulted in the violent or sexual abuses discovered at Abu Ghraib. However, confusion over policies contributed to some of the non-violent and non-sexual abuses.”

Finally, Jones pointed out several additional pertinent elements of the Abu Ghraib detention situation. First were the detainees that “were accepted from other agencies and services without proper in-processing, accountability, and documentation,” who were referred to as “ghost detainees.” Second, Jones remarked about the “systemic lack of accountability for interrogator actions and detainees [that] plagued detainee operations in Abu Ghraib.” Finally, Jones noted:

Although the FBI, JTF-121, Criminal Investigative Task Force, [Iraq Survey Group], and the [Central Intelligence Agency] (CIA) were all present at Abu Ghraib, the acronym “Other Government Agency” (OGA) referred almost exclusively to the CIA. CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib.

Most importantly, “local CIA officers convinced military leaders that they should be allowed to operate outside the established local rules and procedures.”

It is doubtful whether CSRTs have been applied to citizen detainees, but as of July 2005, they were completed at Guantanamo for all detainees.

The CSRTs are administrative rather than adversarial, but each detainee may present “‘reasonably available’ evidence and witnesses to a panel of three commissioned officers to try to demonstrate that the detainee does not meet the criteria to be designated.”

“CSRT procedures are modeled on the procedures of Army Regulation (AR) 190-8.” The AR divides captives into four classes: enemy prisoners of war, retained personnel (chaplains, medical personnel, Red Cross), civilian internees, and other detainees. Under AR, the preliminary determination of status is made on the battlefield; those made under CSRT procedures clearly are not.

AR provides that the reviewing panel decides by a majority vote on the preponderance of evidence whether an individual should be detained.
According to Human Rights First, the “tribunals that will conduct detainees’ status hearings are not neutral” and fail to satisfy the Supreme Court’s rulings in either Rasul or Hamdi. Human Rights First notes:

While tribunal officers are to have had no previous connection with the apprehension, detention, or interrogation of the detainees, this condition is no guarantee of neutrality. A finding in favor of the detainee would require the officer to challenge determinations made by his or her entire chain of command, including the President, who, in an “order” issued February 7, 2002, “determine[d] that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war . . . [and likewise] note[d] that . . . al-Qaida detainees also do not qualify as prisoner[s] of war.” Moreover, the tribunals may only affirm the original “enemy combatant” designation, or determination, and they do not have the option to declare a detainee a “lawful combatant/prisoner of war.”

Human Rights First claims that the status hearings “do not even measure up to the military regulation they claim to mirror,” which established, by contrast, “no institutional interest . . . in the outcome of any particular individual’s hearing” even in battlefield hearings.

The CSRTs are not bound by rules of evidence that would apply in federal court, or even in a court martial. The government’s evidence is presumed to be “genuine and accurate.” The government is required to present all of its relevant evidence. The detainee’s “personal representative,” who is assigned to him, may view classified information but does not act as legal counsel, since the representative need not possess any professional training and communications are not confidential—a fact of which detainees are apparently not informed.

Human Rights First points out that the fact that if status hearings had been “held at the time of capture [and] determined that an individual was a noncombatant, his deportation to Guantanamo . . . would have been a grave breach of the [Geneva] Convention.”

All in all, the War on Terror screening procedures share many, if not most, of the features of the Vietnam screenings; these can be most easily summed up as violating Articles 3 and 4 of the Third Geneva Convention. The rationales for the structure of these screening procedures also seems to be similar: that fighting a new and vicious enemy who does not follow the laws of war himself excuses us from following those laws ourselves, in particular the so-called “Geneva law” that emphasizes human rights and responsibilities.

An Tri Tribunal Procedures

A contemporary Department of State handbook of Vietnamese national security laws sets forth the An Tri procedures in detail. The An Tri detention system permitted the rounding up of “Civilian Security Suspects”—those who were thought to be a “[d]anger to National Security”—on the basis of nothing more than “simply . . . the word of an anonymous informer.” The U.S. puppet Vietnamese “Security Committee” could “take action on a case even though a criminal act cannot be proven.” Members of “infrastructure, various associations, and political cadre, draft evaders, deserters, and those suspected of having violated the laws of the [Republic of Vietnam] will normally be classified as civil defendants and not [prisoners of war].” The procedures for administrative detention were “far less exacting and technical than those of the [regular Vietnamese] courts.”

Similar to designated war on terror “unlawful enemy combatant” detainees, “Civilian Security Suspects” could be detained initially for a maximum period of two years, with the potential of renewed periods upon review. Proceedings were closed to the public; the detainee had no right to counsel or right to appear personally at his hearing. Civilian security offenders were tried by Special Courts, Security Committees or Military Courts, “in accordance with the emergency Decrees and Decree-Laws which define security offenses and specific the forum.”

The rules of evidence were “relatively lenient,” although an accused, in theory if not in practice, could “rebut such evidence and . . . demand that witnesses whose statements are in the dossier appear personally in court.” Evidence had apparently merely to be “sufficient” to “support the arrest, custody, trial and conviction of the suspect,” but classified information could be “[brought] to the attention of the court . . . [but] not be incorporated in the official record of the case.” Confessions were accepted in evidence, “signed by the accused,” and “a substantial number of convictions” were “obtained through confessions.”

The procedures in a fourth venue, Military Field Courts—whose “operation . . . received considerable public attention due to the sensational nature of some of the [Vietcong] cases tried there and the gravity of the penalties involved”—were “considerably simplified and abbreviated, particularly as regards the pre-trial investigations.” The decisions of such courts were final, without any right of appeal. The compiler of these statistics noted that the “laws and procedures for dealing with security offenders are far from perfect and eventually must be replaced” but “for the present, the emphasis must continue to be on winning the war.”

The Bush Military Commission Procedures

While the Military Order and the Military Commissions Order provide for trials of enemy combatants, nowhere do these orders require that every detainee be tried, and, in fact, as we have seen, the Administration has made it clear that it does not intend to try most detainees, emphasizing that the purpose of these detentions is to keep people off the battlefield. The procedures established for military tribunals, however, presently contain the greatest degree of procedure most detainees will be granted. They also contain a similar mishmash of civil and war “crimes” as the An Tri trial procedures

The lower standards of proof, expanded secrecy provisions, denial of judicial review, and the lack of independence from the executive branch go hand-in-hand with and form part of the infrastructure for administrative detentions.

The Military Order, in anticipation of the MCO, stipulates a “full and fair trial” but, as the Congressional Research Service notes, it “contains few specific safeguards that appear to address the issue of impartiality.” The military commission panel sits “as triers of both fact and law.” Evidence may be admitted if, in the opinion of the presiding officer, it has “probative value to a reasonable person.”

An individual subject to the order may be tried only by the commission and “shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in any court of the United States, any court of any foreign nation, or any international tribunal.” Jennifer Elsea notes that “[t]he President appears to have complete control over the proceedings.” She continues:

He or his designee decide which charges to press, select the members of the panel, the prosecution and the defense counsel, select the members of the review panel, and approve and implement the final outcome. The procedural rules are entirely under the control of the President or his designees, who write them, interpret them, enforce them, and may amend them at any time.

Procedural safeguards include the right to be informed of charges sufficiently in advance of trial to prepare for defense, presumption of innocence, guilt beyond a reasonable doubt, open hearings (with exceptions), right to counsel (with restrictions, including monitoring of communications and supervision), and right to discovery to the extent necessary and reasonably available, subject to secrecy determinations. There appear to be no exclusionary rules for admissibility of evidence and no authentication requirements for depositions. The main concern appears to be the need for secrecy rather than fairness of process.

According to Judge Evan J. Wallach, Bush’s Military Order “and subsequent statements by the President, Vice President, Attorney General, Secretary of Defense, and the White House Counsel made it clear that the tribunals were intended to follow procedural and evidentiary rules similar to those used to try spies and war criminals during and after the Second World War,” which were applied in World War Two and in the post-war tribunals [were] repeatedly used to admit evidence of a quality or obtained in a manner which would make it inadmissible under the rules of evidence in both courts of the United States or courts martial conducted by the armed forces of the United States.

Wallach points out further that: “None of the screening processes applied to the Guantanamo detainees, either pre-shipment from Afghanistan, during incarceration, or following the Supreme Court’s mandate in Hamdi, meets the requisites of Article 5” of the Third Geneva Convention relating to prisoners of war.

Indeed, the MCO procedures were considered inadequate by many, including human rights organizations and even by some of the military officers assigned to prosecute Guantanamo suspects. Three retired military officers, each formerly either a Judge Advocate General or senior legal advisor for a branch of the United States military, jointly filed an amicus curiae brief in the consolidated case of Rasul v. Bush, stating: “The government should not be permitted, through Executive fiat, to imprison persons indefinitely when no charges have been brought against them and the prisoners are barred from all access to courts and other tribunals to determine their status.”

Several military defense lawyers filed challenges to the impartiality of the commission judges, three of whom were subsequently removed. The lawyers also filed in federal court challenging the military tribunals. The suit, Hamdan v. Rumsfeld, resulted in a November 2004 District of Columbia Circuit Court decision declaring that unless and until the rules for Military Commissions (Department of Defense Military Commission Order No. 1) are amended so that they are consistent with and not contrary to Uniform Code of Military Justice Article 39, 10 U.S.C. 839, petitioner may not be tried by Military Commission for the offenses with which he is charged [and] unless and until a competent tribunal determines that petitioner is not entitled to the protections afforded prisoners-of-war under Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, he may not be tried by Military Commission for the offenses with which he is charged.

However, on July 15, 2005, the Court of Appeals for the D.C. Circuit overturned the D.C. District Court decision, ruling that Hamdan has no individual right to assert a Geneva violation and that the CSRT, which determined that Hamdan is an enemy combatant subject to indefinite detention, satisfies Geneva’s hearing requirement. Hamdan has appealed to the Supreme Court. Neil Katyal, Hamdan’s attorney, writes:

The court of appeals, by rejecting longstanding constitutional, international law, and statutory constraints on military commissions, has given the President that power in tribunals that impose life imprisonment and death. Its decision vests the President with the ability to circumvent the federal courts and time-tested limits on the Executive.

He notes that: “This case challenges (1) a commission without explicit Congressional authorization, (2) in a place far removed from hostilities, (3) to try an offense unknown to the laws of war, (4) under procedures that flout basic tenets of military justice, (5) against a civilian who contests his unlawful combatancy.” And: “The essence of the court of appeals’ contrary position is that while Petitioner has no rights under the Constitution, treaties, common law, and statutes, he is subject to the penalties and pains of each.”

On a somewhat analogous question, on October 5, 2005, the Senate voted 90-9 in favor of an anti-torture statute that would require all interrogations to comply with the Uniform Code of Military Justice. The D.C. Circuit Court of Appeals did not require that the Military Tribunals adhere to the Uniform Code, as the D.C. Circuit Court itself had, but Congress defied the White House’s threatened veto to pass the anti-torture law that requires such adherence.

The Bush detention scheme, like An-Tri, is designed to screen and detain without a regular trial those who are merely suspected of being dangerous to national security. Again like An-Tri, it was set up with the primary purpose of gathering intelligence, or as White House Counsel Alberto Gonzales said, with “a high premium on . . . the ability to quickly obtain information from captured terrorists.”

The Law of War & Determination of Detainee Status

Where the U.S. eventually acknowledged residual responsibility under the Geneva Conventions for the Phoenix detentions in Vietnam (originally having denied all responsibility, saying it was not in charge), the Bush Administration, while stating it would follow the spirit of Geneva, from the start claimed that Geneva does not apply to most of the detainees, and in any case, that no tribunal other than its own executive decision was needed to determine a detainee’s status.

Bush refused to acknowledge the application of Geneva to terrorist suspects, but White House counsel Alberto Gonzales advised him that “even if [the Geneva Convention] is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel.” This sort of incongruity calls for judicial and congressional scrutiny.

There are two branches of the laws of war: the older one is sometimes called the “Hague law,” after the Hague Conventions of 1899 and 1907, which prescribes the rules of engagement during combat and is based on the key principles of military necessity and proportionality, and the newer “Geneva law,” after the Geneva Conventions of 1929 and 1949, which emphasizes human rights and responsibilities, including the humane treatment of prisoners.

The law of war is based on the idea of reciprocity—you treat your enemies the way you want them to treat you. Derogation from the rules by one party, however, does not excuse breaches by another. “Were this not the case, any deviation from the letter of the law could be invoked to justify wholesale abandonment of the law of war, causing the conflict to degenerate into the kind of barbarity the law of war aims to mitigate.”

Further, parties to an armed conflict retain the same rights and obligations without regard to whether they initiated the hostilities or whether their conduct is justifiable under international law.

Thus, President Bush coud not excuse the United States from honoring (or applying) the Geneva Conventions or other international treaties applicable in the war on terror on the grounds that the 9/11 attacks were unprovoked or violated the laws of war.

Intentional Violations of the Geneva Conventions

One of the darkest truths about both the An Tri detentions and the current administrative detentions of unlawful enemy combatants is that not only did both violate international and domestic laws, but instead that in both cases the U.S. government officials clearly did so intentionally.

With respect to Bush Administration policies, two respected law professors, both of whom served in the military, independently concluded that the January 2002 memo by White House Counsel Alberto R. Gonzales and subsequent presidential decisions and authorizations are “evidence of the initiation of a Common Plan to violate the 1949 Geneva Conventions.”

The Phoenix Program was from the start an unlawful program. It began as a CIA covert operation, ultimately evolving into a program of detentions of dangerous persons, purportedly run by the Vietnamese, but in fact always managed by Americans. Eventually, those in charge—an “old-boy network, a group of guys at highest level . . . who thought they were Lawrence of Arabia”—were required to answer to Congress and conform the program more closely to Geneva requirements. But there was never a full accounting of American transgressions against the Vietnamese.

Similarly, Bush administration rationales and justifications for violating established, time-tested international protections are the same as those used by American officials during Vietnam. Indeed, what one Vietnamese scholar presciently wrote in 1982 could be echoed today: “American politicians have not yet changed their policy . . . . Almost the same people [are applying] the same policy with the same principles and the same spirit.”

As noted earlier, American officials in Vietnam decided that Geneva did not apply to security detainees. Their argument that either the individuals were not “protected persons” under Article 4 of the Fourth Geneva Convention (for protection of civilians) or that Article 3 (common to all the four Geneva Conventions, mandating humanitarian treatment to all persons, even if not protected persons, and forbidding “‘the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’”) did not apply to those who were not charged with a crime and did “not prohibit a state from interning civilians or subjecting them to emergency detention when such measures are necessary for the security or safety of the state,” is ominously similar to the reasoning applied by the Bush Administration.

Based on the argument that the President has the constitutional authority to suspend treaties in certain circumstances or to interpret them to mean that they do not apply to certain persons, President Bush initially decreed that the Geneva Conventions did not apply to al Qaeda (because they were not party to the Conventions) or the Taliban (because they were unlawful enemy combatants not qualifying as prisoners of war).

Judge Wallach notes, “it [is] clear that by the end of January [2002], at least, consideration was being given to conduct which might violate [the Third Geneva Convention’s] strictures regarding the detention and interrogation of prisoners of war.” Former White House Counsel Alberto Gonzales —now Attorney General, with all the powers that position entails—advised the President on January 25, 2002 that if the President determined that Geneva did not apply, his decision would render “obsolete Geneva’s strict limitations on questioning of enemy prisoners,” thus “eliminat[ing] any argument regarding the need for case-by-case determinations of POW status,” and insulating the Administration against domestic prosecution for war crimes.

Wallach points out: “Any such approach is incompatible with the core concepts of rule of law, coequal branches of government and separation of powers,” “would fly in the face of every concept of rule of law and regulation of armed conflict developed over the past two hundred years . . . [and] would also be a direct and criminal violation of the standards for minimal conflict in war time developed at Nuremburg.” Wallach also notes, these violations could constitute grave breaches of Geneva, which would constitute a violation of the War Crimes Act of 1996.

The An-Tri detentions arose out of a desperate climate. In Vietnam, American involvement began in the early 1950s, with American soldiers fighting alongside the French. By 1952, American advisers began training Vietnamese units. By 1954, the United States had installed Ngo Dinh Diem, and the CIA was operating a brutal psychological warfare program which later evolved and was incorporated into Phoenix. Arrests and executions of Vietnamese Communists began in 1956 with the notorious Denunciation campaign under Diem. “The campaign was managed by security committees, which were chaired by CIA advised security officers who had authority to arrest, confiscate land from, and summarily execute Communists.”
A State of National Emergency was declared by the Vietnamese puppet government in August 1964 and a State of War in June 1965. A 1972 memo by Ray A. Meyer, an American legal adviser in Vietnam, making recommendations for An-Tri reforms, noted: “It must be recognized that, in Vietnam . . . preventive detention is a substitute for killing people.”

But even when “reforms” of the An-Tri system were considered, the U.S. embassy decided to defer making them because of “intractable CIA internal security considerations . . .” and the system was then permanently solidified into “a system of indeterminate terms of detention.” Although many of Meyer’s recommendations (hearings open to the public, gradual phasing out of An-Tri), were not adopted, the indefinite detention program was retained.

These facts illustrate the original, albeit ex post facto, rationale for the indefinite detentions: an alternative to battlefield killing, but it was always a means of gaining and exploiting intelligence. This rationale has now been extended to the global “War on Terror,” justifying indefinite detentions of any terrorist suspect, without trial, without any sort of due process or habeas corpus protections, and, prior to the Supreme Court decision in Hamdi, without even a legitimate status determination.

The dilemma now, as during Vietnam, is genuine. How to identify and what to do with persons who plan to sabotage and murder civilians? Is this a war or is it an insurgency? What do you do when civilians may be the enemy? Outright assassination of masses of suspect civilians is not only morally repugnant and wrong, but against the laws of war. But, then, what do you do when the insurgency is civilian based? The easy answer is: you “administratively” (but not quite legally) detain.

But indefinite administrative detentions are not the answer, since the reader may recall that the Phoenix Program was not only about detentions—and this is the real crux of the problem with administrative detention programs—Phoenix was in fact originally an assassination program, so that the culture of what came to be known as guerilla or “unconventional warfare,” bled into the detention program, leading to egregious abuses, torture and killing of detainees, exactly what has now been discovered in our treatment of prisoners at Abu Ghraib and other combatant detention centers.

In both cases the justification was identical: these are dangerous terrorists who want to kill us; therefore, the humane alternative to killing them is to indefinitely detain them. The justification makes sense until one realizes that without an adequate screening process, there is no way to tell who is and who is not a dangerous terrorist. American governments and presidents have relied for centuries on intelligence to make such decisions – and that is the underlying basis for making such determinations up to now: i.e., that the President has the authority to determine who is and who is not a dangerous terrorist because the President has access to intelligence. However, unquestioning reliance on the President has throughout history been repeatedly shown to have been misplaced. Intelligence is often based on hearsay, innuendo, and rumor. It is therefore problematic to rely exclusively on intelligence as the means of determining who is dangerous and who is not.

How Did We Get Here?

Although Vietnam may be and often is seen as a shameful episode in our history, it is clear that we are now repeating that history. Yale Law Professor Harold H. Koh wrote in 1990 about the Iran-Contra Affair:

“If the Iran-contra committees had looked past Watergate to the Vietnam era, they would have seen that the Iran-contra affair was only the tip of a much larger iceberg that crystallized during the Vietnam War. All of the congressional-executive struggles that surrounded the affair merely replicated battles that transpired during that earlier period. That history should have repeated itself across so many spheres of foreign affairs, even after Congress has passed so many statutes to avoid repetition of the Vietnam-era evasions, suggests that the Iran-contra affair exposed systemic, rather than localized, problems in the American foreign-policy process.”

According to Koh, executive seizure of the initiative in foreign affairs can be said to arise from the fact that under our Constitution, the president may more easily do so than may Congress. Koh notes that, beginning with President Franklin Roosevelt’s initiation of “extrovert” foreign policy, “[a]n entire generation of Americans grew up and came to power believing in the wisdom of the muscular presidential leadership of foreign policy.”

“Yet,” Koh notes, “Vietnam caused an entire generation to rethink its attitude toward foreign policy. National elites became less willing to intervene to defend other nations and to bear the costs of world leadership.” “Why, then, have presidential initiatives not only continued, but appeared to accelerate, during the post-Vietnam era?” Koh believes that “America’s declining role as world hegemon has forced changes in the postwar structure of international institutions, which have in turn stimulated further presidential initiatives.”

A shift has also taken place in the public mind. “The rise of new and unanticipated problems not subject to the control of any nation-state, such as global terrorism and the debt crisis, have increasingly forced the United States into a reactive international posture. Given the president’s superior institutional capacity to initiate governmental action, the burden of generating reactive responses to external challenges has almost invariably fallen on him.” According to Koh, “[t]he same public opinion that has empowered the plebiscitary president has simultaneously subjected him to almost irresistible pressures to act quickly in times of real or imagined crisis.” Koh attributed what he saw in 1990 as “the recent wave of treaty breaking and bending” as a reflection of a “reactive presidential role in leading both America’s flight from international organizations and its movement toward alternative mechanisms of multilateral cooperation.”

Koh cites “President Reagan’s use of short-term military strikes and emergency economic powers (to respond to terrorism); longer-term military commitments in Lebanon and the Persian Gulf (to respond to requests for peacekeeping); arms sales (to respond to military tensions in the Middle East); and covert actions (to effectuate neo-containment policies in Central America and Angola) [as reflections of] the modern American perception that crisis situations uniquely demand a presidential response.”

Whatever the reasons for “presidential initiative,” it is clear that such initiative is at the bottom of the abuses found behind the present detentions of combatants. It is clear that, whether or not we should require presidents rather than Congress to be responsible for creating and carrying out foreign policy, the President now is responsible for those things and thus cannot claim both to lead the nation and simultaneously evade responsibility for the egregious acts of subordinates who follow his policies. Having issued orders that intentionally evade and violate the central international laws relating to detention and status determination of belligerents, having sanctioned indefinite detentions and interrogations that violate those same laws, which ultimately led to torture and murder committed by soldiers and military intelligence personnel, the President and his advisers are ultimately responsible for the consequences of those violations. They may not evade such responsibility merely by stating that laws do not apply, or as Charles B. Gittings of the Project to Enforce the Geneva Conventions put it recently in an amicus curiae brief in the Guantanamo Bay Detainee Cases, they may not “commit war crimes with impunity [simply] because they are responsible for enforcing the laws.”

We have reached a critical point in our history, a point which has ramifications as far-reaching as the Civil War or World War II.

This is is a considerably shorted version of an article (without the footnotes) by Jennifer van Bergen and Douglas Valentine in the Case Western Reserve Journal of Internatiomal Law, Vol. 37, nos 2 and 3, 2006. The original, with footnotes and appendices, may be viewed at:

Jennifer Van Bergen, a journalist with a law degree, is the author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004) and Archetypes for Writers: Using the Power of Your Subconscious (Michael Weise Productions, 2007). She can be reached at

Douglas Valentine is the author of four books, including The Phoneix Program, which are available at his websites and