The Bush administration internal debate on detainee policy, again

I was delighted and surprised to have my last post on detainee policy picked up by the TNR blog, the Plank, the AmericanScene blog, and the National Review's The Corner blog. Reading over what they picked up, it made me think I should be clear about a couple of things:

• Although I am sharply critical of the realist Cheney camp within the Bush administration on this matter of detainees, no one should confuse that with a basic disagreement over the war on terror, or the wars in Iraq or Afghanistan. I do think that in crucial respects, there is a war on terror, and I am an entirely unrepentant supporter of war in Iraq and Afghanistan. I think the Cheney, et al., position on how to treat detainees is wrong - profoundly wrong - but it is not a general disagreement about the thrust of a war policy. My view of the war against jihadist terrorism is approximately that of Christopher Hitchens - I have referenced several of his columns here on this blog, and with respect to the "realist" debate, strongly recommend this one from Slate - and I tend to agree also with the views of Mark Steyn and the Hoover Institution´s Victor Davis Hanson (eg this recent City Journal article by Hanson, here, or this National Review online article, here).
• Support for using the language of common article 3 of the Geneva Conventions as policy in detainee policy should not be confused with a belief that everyone picked up in the war on terror is entitled to Geneva Convention III POW treatment. Too much of the left critics of the Bush administration seem to believe that this debate is about whether the Geneva Conventions are applicable in full to detainees in the war on terror. So let me be clear. My position, and as I understand it, the position of internal administration people calling for the use of common article 3 language, is not that detainees determined to be part of terrorist organizations are entitled to treatment as POWs under GC III. They are not; they are unprivileged belligerents who are not entitled to GC III treatment.
• As for the level of procedure to which a detainee is entitled to determine whether he or she is properly classified as part of a terrorist organization, my view is that as a matter of both policy and also as the best (but not legally required) reading of the Geneva Conventions III, article 5, which provides for hearings to determine status of detainees, hearings should be provided. Those hearings should be held per the 1997 DOD regulations for a three officer hearing (although because those hearings were not held in the first place, it became inevitable that when hearings finally were held, they provided more elaborate procedure than would have been necessary had the DOD regulations implementing Article 5 in the first place). I do not at all believe that there is a basis under the history or practice of Article 5 hearings for anything more elaborate, although under current circumstances some form of review is appropriate. Article 5 is not a justification for providing a full hearing with counsel, civilian trials, or the full range of hearing privleges available to a bona fide POW. I have written extensively on the Article 5 issue elsewhere on this blog. (In general, although not in every particular, I agree with John Yoo's view on terror suspects and the Geneva Conventions, from a short op-ed piece in USA Today, here.)
• So, yes, the Geneva Conventions apply to the war on terror, but that does not mean what many people seem to think it means or what they would like it to mean - viz., that every detainee is entitled to POW treatment. And I do not understand anyone in the Bush administration, Matthew Waxman or anyone else, to believe or be arguing for that. The issue is far more circumscribed - should administration policy on treatment of detainees use the language of common article 3 as a floor on treatment of detainees.
• Let me emphasize also that those in the Bush administration arguing for the use of common article 3 language do not mean that the US should use it because that shows the US is a team player in the international community, or that the US should be "big enough" to do what everyone else wants, etc. It is, on the contrary, an argument that the US should influence the content of international law by being willing to use the language of international law and, through its state practice and official statements, make a case for what the content of those words mean. I do not believe that the US should be a "team player" in the international community - when it does so, it usually means it is being played for a fool. The argument is not one of going along with what others want because they want it - for the simple reason that on publicly inflamed issues such as detainees, what others want is to show that they can constrain the United States, constraint for its own sake, to show that they have influence in the world. Whereas the US ought to be throwing its weight around in establishing international law and what it means - using its strength to announce its own view of what the meaning of such terms as "humane treatment" and "abuse" is, as a matter of its view of international law. This will not make the international community happy - on the contrary, it will anger the international community, because it will look like exactly what it is, a superpower demanding that its view of international law be given commensurate weight. It is the superpower asserting that its views of international law, while not flatly determinative, carry very great weight. It is the superpower asserting some level of ownership over the content of international law. Since the rest of the international community sees international law as its special playground, it is a recipe for greater conflict, not less conflict.
• The Cheney position, by contrast, arises from a perception of weakness and a belief that the US should avoid talking the language of international law because it is assumed that it "belongs" to someone else - NGOs or international virtuecrats or middle-sized powers seeking to punch above their weight by invoking moralist language. The Cheney position essentially concedes all that. It is true that under some circumstances, I have recommended that the US not engage in negotiations over international law issues, for the reason that the existence of negotiations is solely in order to reach a foreordained result that cannot possibly - and everyone knows in advance cannot possibly - be in US interests. That is not, however, an argument for refusing to assert one's view of international law and the content and interpretation of its terms.
• At an even more general level, the US failure to assert its views of international law, and to announce, regularly and formally in a variety of venues, that its state practice represents, as a matter of opinio juris, its view of the content of international law, costs the US immensely in a world in which, like it or not, the ideology of international law matters. Why has the United States not responded in an official and comprehensive way to 1977 Protocol I, when it has so many justifiable disagreements with it (even the NY Times editorialized against Protocol I in Reagan administration days)? Why is no response likely to come to the new ICRC study on customary international law of war? While many seem to think it proceeds from an arrogant sense of strength, to my mind it actually reflects a deeply dangerous view of American weakness, that it cannot assert any ownership over the content of international law.
• On the general question of detainee policy - indeed, the general war on terror - I have come slowly to the view that it is time for a legislative framework to establish the terms of a war on terror that necessarily involves elements of regular war, elements of policework, and elements of what might be called an intelligence war - something that is neither war nor policework. Leaving aside the McCain bill - what I mean here is something far more comprehensive, far beyond simply detainee treatment - I think it is time for a comprehensive legislative framework. This is anathema to the Bush administration, partly for substantive fears that a legislative framework would undercut the ability of the administration to act and partly for reasons of the preservation of executive power. But it is time for the Bush administration to look for what will remain of the war on terror after its tenure is done. Unless it is institutionalized in a way that incorporates the legislature, the next admininstration, Democrat or Republican, is likely to repudiate or merely ignore the war on terror, feeding on a public hope that it ended with the administration that had to respond to 9-11. That is a natural feeling on the part of the public, but of course terror does not obey American electoral cycles. The war on terror, like the Cold War, needs an institutional base, and that can only come about, a this point, by enshrining it in a legislative framework. (Tod Lindberg, of the Hoover Institution's Policy Review, and I are considering a conference on this topic in DC in the spring.)