It’s the Law -- Even in War

“No country integrates the laws of war into its operational military planning better or more systematically than the United States.”

This is an assertion I made many times during the decade I represented the U.S. government as a career State Department lawyer.

I defended the U.S. acceptance of, and obedience to, the international law of armed conflict most vociferously in 2000, after the chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia announced to the press that she was reviewing allegations that NATO forces had committed war crimes during the 1999 bombing campaign in the Balkans.

I urged prosecutors at the war crimes tribunal not to give unwarranted credit to allegations that U.S.-led NATO forces had violated the laws of war; at the same time, I sought to assure U.S. military personnel and policymakers that the United States would not only withstand scrutiny by the war tribunal’s prosecutors but would be vindicated by it.

My arguments were based not merely on a lawyer’s duty to defend his client. Rather, I spoke from a genuine belief -- built upon years of experience -- that the American military was committed to minimizing the most barbaric aspects of war by respecting the basic humanitarian protections embodied in the laws of war.

This is why each of the revelations that has emerged over the last six weeks regarding the military’s treatment of detainees in Iraq, Afghanistan and Guantanamo Bay, Cuba, has left me feeling betrayed.

As shocking as the photographs were from Abu Ghraib prison, perhaps more galling for me as a former executive branch lawyer was the claim attributed to one of the alleged participants that he had to learn about the 1949 Geneva Convention on his own by searching the Internet. How could the U.S. Army -- my army, which I know to be characterized by honor and integrity -- ask soldiers to detain and interrogate prisoners of war without training them in the fundamental rules that apply?

Now we’ve learned that this was more than just a breakdown in a particular military command in Iraq. White House Counsel Alberto Gonzales, in a memorandum drafted for President Bush, declared -- with only a thin fig leaf of legal analysis -- that the nature of the war against terrorism simply rendered the Geneva Convention “obsolete.” And the Wall Street Journal reported this week that, as recently as March of this year, executive branch lawyers advised Secretary of Defense Donald H. Rumsfeld that U.S. personnel were effectively exempt from international treaties and U.S. laws prohibiting torture. The theory? That law prohibiting torture “must be construed as inapplicable” to interrogations conducted pursuant to the president’s wartime commander-in-chief authorities.

In other words, notwithstanding this country’s longtime commitment to democracy and rule of law, the president and those acting on his behalf in times of war are above the law.

That’s a stunning conclusion. It is also wrong. The restraints of law do not disappear in armed conflict, whether it is traditional combat or the kind of asymmetric struggle against terrorism in which the United States is now engaged. The U.S. has long accepted the notion that law applies even in war. We should continue to do so now.

The U.S., through its democratic processes, freely agreed to comply with the restraints on torture and mistreatment of prisoners of war embodied in the Geneva Convention (in 1956) and the Convention Against Torture (in 1994), as have many, many other countries.

That’s a meaningful commitment; as Justice Hugo Black once wrote, “Great nations, like great men, should keep their word.”

Compliance with international laws of war, moreover, advances a number of important American interests. Most important, international law is based on reciprocity. If the U.S. determines that the laws of war do not apply to our adversaries, it undermines the sanctity of those protections and increases the chances that our adversaries -- in the conflicts not only of today but of tomorrow -- will ignore them as well.

Because there is no central global authority to compel compliance with international law, the system depends on voluntary compliance by countries. In a world of hardheaded realism, an American policy of disregard for international law in the interest of short-term expediency removes the principal incentive for our partners to abide by their promises to us, not only regarding the treatment of prisoners but in all the fields in which international law advances American interests.

As no less a realist than Henry Kissinger once observed, the U.S. “is convinced in its own interest that the extension of legal order is a boon to humanity and a necessity.”

Finally, even in times of war, the U.S. should scrupulously apply international rules prohibiting torture and mistreatment of prisoners of war not only because it is in its geopolitical interest to do so but because it is right.

These humanitarian principles reflect profound American ideals celebrating the dignity of the individual against abuses by the state. Upholding these values, even in times of great national crisis, would reflect the beliefs that have inspired American foreign policy since the time of Woodrow Wilson.

By keeping the promises we made when we became a party to the Geneva Convention and the Convention Against Torture, the United States can instill in its citizens a sense of pride in its government, and not a sense of betrayal.