Critics' Attack on Tribunals Turns to Law Among Nation

By William Glaberson, The New York Times, 26 Devember 2001

Going beyond claims that the military tribunals authorized by President Bush would violate civil liberties guaranteed by American law, some experts are beginning to argue that they would breach international law guaranteeing fair treatment of prisoners of war.

Critics of the administration say the president's order authorizing the tribunals conflicts with treaties like the Geneva Conventions, which give P.O.W.'s facing charges of egregious conduct protections that include the right to choose their own lawyers, to be tried in courts that are independent of the prosecution and to appeal convictions. None of those rights are assured in the president's order, which opponents say precludes at least two of them.

The critics, among them legal experts with military backgrounds, say the tribunals could create risks for the armed forces, including the possibility of charges by other countries that American officers who conduct tribunals are guilty of war crimes.

If the U.S. government is going to pull the wool out from under the Geneva Conventions, that is going to be serious for our soldiers, said Francis A. Boyle, an expert on the law of war at the University of Illinois.

A central issue, experts on both sides of a growing debate about the tribunals say, is whether Mr. Bush meant to declare that members of the Taliban, Al Qaeda and other organizations that support terrorists would not qualify for the protections given prisoners of war.

The administration has sent contradictory signals on the issue. The Defense Department has said that those captured in Afghanistan are being provided the humane treatment guaranteed P.O.W.'s by international law. And in an interview, an administration official who spoke on the condition of anonymity said, It is not the case that we have abandoned the Geneva Conventions in planning for the handling of those subject to trial by military tribunal.

But in remarks on Nov. 29, the president, denouncing those who seek to destroy our country and our way of life, described them as unlawful combatants. That was the term applied by the Supreme Court in its 1942 decision upholding military tribunals for a group of German saboteurs who had slipped into the United States. In that ruling, the justices said spies and saboteurs were violators of the law of war and so were not entitled to prisoner-of-war protections.

Beyond the issue of whether the tribunals themselves would be lawful is the question of how broadly they should be applied. Critics say that grouping not only terrorists but also forces of the nations supporting them as unlawful combatants would invite other countries to so describe any American troops who were engaged in a campaign that a hostile nation deemed illegitimate.

If we argue it is legal, we are arguing that other sovereigns - Libya, Syria, Iraq, Cuba - could also have tribunals, said Alfred P. Rubin, a former Pentagon lawyer who is a professor at the Fletcher School of Law and Diplomacy at Tufts University.

The administration's supporters say that no matter what rules the United States adopts in deciding how to try terrorists and their allies, the niceties of international law would be unlikely to limit abusive treatment of any Americans captured by some enemy nations.

But the critics say this country long ago decided that compliance with agreements like the Geneva Conventions was in American interests. During the Vietnam War, several experts noted, American military officials at first refused to grant captured Vietcong the protections of prisoners of war. But that decision was quickly reversed, they said, when it became clear that Americans, too, would become prisoners during the conflict.

Much of the body of international protections accorded warfare's sick, wounded or captured soldiers is laid out in the Geneva Convention of 1864 and its subsequent revisions.

Although prisoners of war are usually released at the end of hostilities, international law permits trial of captured opponents under certain circumstances. (How serious the alleged offense need be is a matter of debate.) But even those experts who back the administration say the president's unlawful combatants remark suggested that the tribunals would not comply with the detailed requirements of the prisoner-of-war pact formally known as the third Geneva Convention, of 1949, Relative to the Treatment of Prisoners of War.

He was making the claim that in the view of the administration, the standards of Geneva III do not apply, said Ruth Wedgwood, an international-law professor at Yale and the Johns Hopkins School of Advanced International Studies, who is a defender of the tribunal plan.

Professor Wedgwood said the administration appeared to be laying the groundwork for arguing that terrorists and their allies are not entitled to prisoner-of-war protections, although the president's order said any military tribunals would conduct trials that are full and fair.

The administration official who was interviewed said it would be premature to discuss the new criticism being directed at the tribunals, since the Defense Department was still drafting regulations on how they would be conducted. Those regulations, the official said, will comply with international law.

The official noted that the president had specified only minimal standards for the tribunals - that sentences, for instance, must be approved by a two-thirds vote. The official said the Pentagon could tighten those standards, providing that a death sentence, for example, require a unanimous vote.

But some critics say the president's order includes so many provisions violating the Geneva Conventions that it would be difficult for the regulations to meet the conventions' requirements. Michael J. Kelly, an international-law specialist at Creighton University School of Law, in Omaha, said a line-by-line comparison showed many such instances. For example, he said, the president's assuming the authority to make the final decision on the disposition of each case is in direct conflict with the third Geneva Convention's provision that no prisoner be tried by a court that fails to offer the essential guarantees of independence and impartiality.

Further, the convention guarantees prisoners a right of appeal, while the president's order seems to bar it. And the convention guarantees a defense counsel of the prisoner's choice, where the president's order, while authorizing defense lawyers, does not say whether the prisoner can choose his own.

Some of the critics, including Jordan J. Paust of the University of Houston Law Center, who has taught at the Army's military law school, said the president appeared to have concluded that it was assaults on civilian targets like the World Trade Center that made the attackers unlawful combatants.

The trouble with that analysis, Mr. Paust said, is that it give terrorists the ability to claim that under international law, attacks on military targets like the Pentagon and the destroyer Cole are lawful acts of combat.

What the president is doing, Mr. Paust said, is legitimizing certain types of terrorism.