Focus 580; Reports On Treatment Of Guantanamo Detainees

Will in the years since the terrorist attacks of 9/11 the Bush administration has received a good deal of criticism for the way it has treated suspects in the war against terror. For example in 2002 the White House announced that it had concluded that the Geneva Convention did not cover Al Qaeda and Taliban members captured in Afghanistan that they were not prisoners of war and didn't have to be treated as such. There have been charges made that detainees held at Guantanamo Bay have suffered treatment that is cruel and degrading and also similar charges have been made about people detainees held in Iraq raising many difficult and fundamental questions about just who is a prisoner of war. How do we treat them. What is allowable in terms of techniques used to interrogate people. All difficult questions things that I think probably a lot of people before 9/11 didn't think much about at all. This morning in this part of focus will be trying to talk a little bit about human rights and the war on terror. And our guest with the show is Jeffrey Walker he is an attorney who specializes in among other things

national security law and the law of war. He's a senior fellow at the Institute for International law and politics at Georgetown University where he went to law school got his law degree there and currently is working on a Ph.D. in international relations there. He also served as a judge advocate in the U.S. Air Force between 1988 in 2003 and during that time acted as a legal adviser on the law of armed conflict policy and implementation and also served as a law of war adviser to the U.S. Air Force headquarters at the Pentagon as a degree in Political Science from two lane. And is here joining us in the studio to talk as we do that questions comments are certainly welcome. I know he'll do his best to respond. The number here in Champaign Urbana 3 3 3 9 4 5 5 and toll free 800 to 2 2 9 4 5 5. Well thanks very much for being here. It's a pleasure to be home in Illinois again. It's I guess one of the reasons we thought it be interesting to get your perspective on this is because in a

sense you've been on both sides of this fence having been a military lawyer and someone who is in the position of having to advise the military on these matters and now being in the private sector and someone who I think has some real concerns about how did ministration has thought about these these very matters and in fact you even were involved in filing a friend of the court brief in a Supreme Court case this was the one involving Jose Padilla. It just is a way of starting what you know how to how do you think about this again pretty quickly as being someone who was kind of kind of on both sides of this question. Yeah it is. I sense from your from your tone that you had the same feeling I did this is a huge issue. It's just an enormous area of the law. And again I grew with you entirely from your introductory remarks David that that it's one that most people probably didn't think much about until we started capturing people in Afghanistan after

9/11. There really. Are. Being on the inside as you say is a military judge advocate actually started out in the air force by the way as a bomber Navigator so I was actually an operator for five years before going off to law school but then spent most of my career as a judge advocate and it's interesting that I've done a lot of work with some of the international law academy if you will the the the academic side of international law where a lot of very great thought his put into these issues and a lot of really pathbreaking writing is done on it. But on the other hand there's a stark difference between writing kind of legal theory in Jewish jurisprudence about these issues and having to answer for day to day questions to captains and lieutenants and majors and sergeants who have to deal with very tough factual issues in the field. Taking fire from a mosque when can we fire back. Well the book answer is

it's a protected place it's a cultural object you're not allowed to fire back unless of course you're being fired at from the mosques and now you have the rule with the exception and the law of war is full of that. And as a military lawyer you spent a lot of time training and in answering and discussing and vetting about these questions with with tactical commanders people have to actually make the shoot no shoot decisions on the ground. And in that regard I think military lawyers probably are sort of the blue collar lawyers of this discipline. But I think have a lot of great insight into it. It's. It's a struggle in every conflict. And of course there's also it's not strictly a legal vacuum you're operating in there's also a lot of policy issues involved as well. I did a lot of work in the Balkans conflicts in both Bosnia and the Kosovo air war and the politics

of those operations probably constrained our commanders choices more than the law of war. For example in Bosnia I recall working with the air commander there. Now retired General Mike Ryan who is really one of the finest commanders I ever worked with and he said it is a measure of merit for our bombing campaign in this in the summer. Of 1095 when we centrally bombed the Bosnian Serbs back to the bargaining table in Dayton for lack of a better term. So look at we have two measures of merit for this operation one to get the Bosnians or the Serbs I'm sorry back in the negotiation and to zero civilian deaths. Now that is not a legal requirement. You can't have disproportionate civilian injury disproportionate civilian property damage disproportionate civilian deaths. But the law of war nowhere says zero. Now what why was that a measure of merit for this operation. The Clinton ministration very keenly saw that the political capital that underlie

underpinned that operation was a very tenuous and a very small pile of capital if you will. And it wouldn't take too many images on CNN at night of dead civilians or you know a bad bomb that went into a school somewhere to at least in the eyes of the Clinton ministrations time it was conveyed to us in the field to have the whole sort of house of cards come tumbling down around. So that was not a law of war requirement that was a policy decision a policy call. That restricted our choices of tactical action more than the laws of war require. So it's an interesting sort of dynamic and it's not just a sale is as I say a legal vacuum and the politics the policy choices made about a particular operation have an enormous impact. Well let me ask you. And it's something that I'm sure we could talk about for a long time. The what seems to be a basic question maybe the basic question when has comes to how detainees have been treated.

And that is who qualifies as a prisoner of war and comes under the Geneva Convention. Is that really such a such a difficult thing to determine. Well as with most issues in the law of war there's a quick answer. That would be uniformed soldiers. And then there's all the qualifiers that come thereafter which is yes all members are regular members member uniform members of regular armed forces of a nation state. But also you get into sort of more interesting permutations under the convention dispositive on the issues of prisoners of war which is Geneva Convention three of the four 1949 Geneva Conventions the Third Geneva three is achieve a convention on the treatment of prisoners of war and Article 4 of Geneva runs to many many subparagraph. After that initial statement members of regular armed forces. But see and also is what comes after that. For example members of militia

or volunteer corps that are operating with regular armed forces members of militia or volunteer corps that are necessarily operating with regular armed forces but meet for specific criteria that include wearing some open symbol or uniform carrying their arms openly operating in compliance with the laws of war and being under the command of someone responsible for the actions of their subordinates. Essentially kind of organized disciplined militia. Or volunteer corps. Also persons accompanying military forces without being members thereof is the actual language. That may sound like we're talking about an archaic concept like you know mule skinners and scouts and that sort of thing. Well yes but you could not take an American military force to the field today and have them survive very long without a lot of civilian contractors going with them and we certainly heard a lot about this with the contractors that were brutally and tragically killed in Fallujah which triggered the first siege of pollution if you will. There are thousands tens of thousands of civilians

traveling with US forces in Iraq and Afghanistan. That's a lot of discussion about Halliburton and Kellogg Brown and Root revolves around the fact that they're the ones that hire most of those people for support contracts at least in Iraq and in Afghanistan. So there's this whole. Other sort of categories of people that also if they're taken by by an opposing force are treated as prisoners of war. The issue with the Guantanamo detainees really centers around whether or not they are members of regular armed force or they're members of a volunteer corps militia that that's an argument an auxillary to a regular armed force. And I think that's really where the nut of the argument rests. The decision was made by the administration that they're not. Well it sounds as if here again it says they were just talking about people in Guantanamo people who are suspected of being either Taliban or al Qaeda. All right. Here it sounds as if it would be a little perhaps a

little bit easier to make the argument that the Taliban are covered by Geneva Convention and maybe al Qaeda are not. But again is the way that you've described it it sounds like you could actually also make the argument that al Qaeda people maybe if they were fighting with the Taliban maybe you make the argument well maybe they are covered to it. It sounds as if you could. Make a reasonable argument either way to say that they are or that they're not. How do you wear this. Is there any final arbitration subject like that. Well ultimately it's based upon the goodwill of the parties to the treaty as I suppose you could be held accountable before an international judicial tribunals like the International Criminal Court which the Bush administration is has as renounced her signature of that treaty so there's no

no chance the US because before that during only time in the near future. I think the yeah I mean get the first part of your comment there David. Yes you could. I would and I have made the argument that the Taliban should be covered by Geneva 3. The counterargument to the Taliban forces being prisoners of war generally goes something like this. Only three countries recognize the Taliban government and the Taliban government was oppressive and evil. OK I agree those are factually correct statements they were oppressive and they were evil. They were medieval evil in a lot of ways. And only three countries recognize me believe it. It was Yemen Saudi Arabia and Pakistan the last two of those being somewhat important countries in that context to recognize them. But that is not for my political science side of my brain that is not just because I don't think of what constitutes a government of a country they were certainly in effective control of the borders of most of that country the Northern Alliance

controlled a little slice in the north. They were in effect of control actually monopoly control of the leaders of power in that country. Defacto certainly they were the government Afghanistan Afghanistan was a state party to the Geneva Conventions the Taliban never renounced that membership status a state party. So by the terms of the Geneva conventions themselves they continue into effect with a successor state government and so there they are formally renounced. So the Taliban were the regular armed forces if you will I mean they didn't look particularly regular from a Western point of view but they were for lack of a better term the armed forces of the Islamic Republic or whatever it was of Afghanistan. So I think there is very thin ice in that regard. Another one the arguments made about the Taliban is well they didn't they didn't really operate in compliance with the laws of war and generally a couple of incidents would be would be cited of sort of barbaric treatment by some Taliban force as well. That doesn't undermine the status

of the entire force. Otherwise the U.S. military would be in trouble. Anytime you have a soldier group or soldiers or committed or crime the more important issue is the al Qaeda person I think is really much more and I should say important much more interesting and divisive issues. And I've always said that there's al Qaeda and there's al Qaeda there's at least three distinct categories of al Qaeda there's there's a there's a some of bin Laden in his inner circle which are in my view the the head of an international criminal organization and nothing more. They're they are a private entity of some sort trying to exercise a sovereign prerogative of violence against another state. It's a crime it's an international crime that's a domestic crime anywhere that I know of. The second kind of al Qaeda are these these crim Dilla crim and I use that term tongue in cheek that were skimmed off the top of the training cadres the people that came to these training camps mostly in Afghanistan and were selected for their education their ability to work in the West. Their their language skills what have you. For

very specialized very expensive training additional training and these are the 9/11 hijackers. It shouldn't be a surprise that most of these guys came from Saudi Arabia. A wealthy country well-educated and educated families traveled in the West lived in the West spoke English. That's where you going to find people that can answer that job description essentially. They are the 9/11 hijackers many of them were rounded prosecutes or were quite simply criminals. They were they were not fighting in uniform they're hijacking airplanes which is an international domestic crime both in the World Trade Center in particular obviously a civilian target in the intent being to kill as many civilians as possible so I don't see much question about that. The bigger question then is what about the other 90 percent or 95 percent of the trainees you know the paradigm being sort of the minimally literate you know Pakistani goatherder son that went off to do his what he perceived to be his religious duty. That's a different situation. And

I think this is my opinion certainly that that that they could fit the classic definition of a volunteer corps. The only distinction I can see the fact they were referred to in Afghanistan by the Afghanis as the Arab brigades now they were not Arabs Pakistanis are Arabs for example but. The Arab brigades were used to augment the Taliban field forces the Taliban military forces in fact. The Economist wrote extensively about this about a year and a half or two ago. And interestingly enough what the Arab brigades were being used for during the Northern Alliance us cold that led coalition offensive into Afghanistan after 9/11 really to fall to protect key cities and towns urban areas essentially and to bolster and plug holes in the faltering Taliban lines. Now a little bit of historical research will show you that that's exactly what the famed international brigades maybe the most famous in our country the Abraham Lincoln Brigade in the

Spanish Civil War in the 1030 as we used to do they had to make the stand in these in important urban areas and they plug the faltering lines of the Republican forces. And I you know it's I point that out simply because a lot of this gets caught up with we want to call them something or deny them some status because we don't like them because they oppose us because they fight against us. That's a dangerous way to make decisions in the law. To be honest with you in these tough factual situations that you you have to make the hard legal decisions like that. But there is you know history is replete with these kinds of volunteer corps that have been you know fabled in song and story for centuries the famous Irish wild geese regiments that fought for Catholic monarchs all over the world for example foreigners volunteering to fight in someone else's army. Claire should General Clare should know Claire she knows famed Flying Tigers who flew for the Shanghai sex National's forces against a Japanese before World War One broke out in fact after Pearl Harbor they were just on mass

inducted into the Army Air Corps and they were actually being paid by the head for shooting down Japanese planes and there's a whole mercenary issue there. I want to go when you go down that road to say the truth about flying tigers so you know there's there's. Because there we were the ones they were fighting against I think it's easy to lose track of the fact that they may be part of this greater historical context. Well I have a couple callers I want to get to I want to promise those people and will make them. Certainly for me as you want for the question I suppose this this actually is in the way I'm I am asking sort of for a matter of an expression of your personal opinion. You may or may not answer but ever since 9/11 as we've talked about what happened and what's happening in the world the Bush administration and members of Congress and people in the news media have all use the phrase the war on terror and the kinds of metaphors and the way that we have talked about them have been the metaphors of war at the

same time. Other people have made the argument that says you know that's the wrong way to think about this that for example as you use the phrase you've used it to describe al Qaeda with this is this is an international criminal organization that the attack on the World Trade Towers was not an act of war this was a criminal act and that would that would suggest that a different sort of strategy in in your mind. Do you think that applying that the metaphors of war to what has been called the war on terror. Was it his that the right kind of language to use Has has he using that kind of language to lead us to to do certain things that maybe were counterproductive. Well I mean unfortunately I suppose it's become something of a hackneyed phrase we had in the war on terror in the war on poverty in the war on drugs in the war on hunger and the war on ignorance in the war on everything you know. It's interesting that we sort of find it mildly amusing some of

the idiomatic phrases TRANSLATED FROM ARABIC mothers of all Mother of All Battles and blood running in the streets which are really sort of idiomatic phrases and heard language I'm told by Arab language sino. And when you have those two and I think war war on fill in the blank has somewhat become one of those. The problem really is it's the dichotomy between how do you treat this is it. Is it a military war is it a law enforcement problem. And that is the answer is yes both. Afghanistan was clearly a war it was an international armed conflict. The United States government this administration agrees it was an international armed conflict. It was a war against the Taliban because the Taliban openly harbored this terrorist organization that had just proven it was willing to attack Americans and the American homeland. You know we said you need to throw them out you need to stop this you do arrest these people responsible and we've been saying that for many years essentially to the Taliban and they publicly thumb their noses at the United States. After this attack I think the entire world agreed

we had a sound legal basis for invading and attacking Afghanistan or removing the Taliban government and disrupting and capturing as many al Qaeda as we could. But there's other other problems. Our law enforcement problems for lack of a better word what it was has a PDA is a very good question. What what about the African embassy bombings what about the First World sit Trade Center attack the African embassy bombings and the world first World Trade Center attack were both handled as law enforcement problems. It is possible for the military to assist law enforcement now within the United States that's a difficult issue because of posse comitatus restrictions which we probably don't have time to talk about that's a whole other show and of itself probably but extremely internationally there is no prohibition in American law and U.S. law on U.S. military forces assisting. The FBI or any other American law enforcement agency or taking a law enforcement

role overseas there is a provision domestically on that. So it's not it's a series of campaigns it's a series of operations if you will. Some of them law enforcement some of the military armed conflict and I think it's going to be that way for the foreseeable future. We are at the midpoint here. We have some callers We'll get to. Let me again introduce again our guests. We're talking with Jeffrey Walker he's a senior fellow with the Institute for International law and politics at Georgetown University where he got his law degree. He's now working on a Ph.D. there and international relations He's also a retired military officer retired lieutenant colonel in the Air Force. He served as a judge advocate in the air force between 1088 in 2003 acting as legal advisor on the law of armed conflict policy and implementation He also served as law of war advisor to the Air Force headquarters at the Pentagon and he's interested in national security law the law of war international human rights among other things he's a member of both of the ACLU and the VFW.

That's pretty good and is here with us in the studio. We're talking about some of the issues involved in how it is that detainees suspects in the war against terror have been treated. Questions are welcomed. We're now in our second half of the show and callers will help us by being brief. We can get in that way as many people as possible 3 3 3 9 4 5 5 toll free 800 to 2 2 9 4 5 5. First caller is Line 1 in Champaign. Hi I was wondering if I could turn the discussion back to international law the international criminal court you said that the U.S. was not a signatory to that and I remember I was in Belton and I sat in on a class in which a Serbo-Croatian speaker was trying to encourage Belgian become translators at the court in The Hague and she was very excited about it it felt that she was participating in the creation of international law and obviously she was working on the war crimes. Issues in the former Yugoslavia.

So I was going if you could talk about your personal feelings or your academic view of that and what you think about this kind of phobia of that court by many Americans as kind of a political phobia and then I guess I just mention in contrast to that knowing that pacifist in Germany who felt that the whole notion of laws of war it's one and the laws of war was an oxymoron. I mean is it possible to have laws of laws of war so that you keep us occupied for a while. Yeah thanks. Thanks for those two very very tough questions. OK. So we can do. The Hague may be the most over lawyer cities. With the possible exception of Washington D.C. in the world. There are several international courts that sit at the Hague the International Court of Justice the World Court but also the International Criminal Tribunal for the former Yugoslavia sits there and the ICC will as well. The ICC why the International Criminal Tribunal for the former Yugoslavia. The U.S. was

instrumental in founding in fact Dave Schaeffer who I submitted the meekest brief in the case with was was the grandaddy and he would like me calling him a granddad he's not much older than I am. The granddaddy of of the icy tyo when he was a Clinton ministrations ambassador at large for war crimes. And I did a lot of work helping provide evidence and find witnesses in Bosnia for that tribunal as well the U.S. has been an avid supporter of that tribunal. And the one in Rwanda as well since there since our establishment the early 90s. That's the course the ICC wise where Slobodan Milosevic is currently entering a second or third or fifth or twelfth year of his trial that's going to go on for some time I think. The ICC the big phobia expressed about the ICC is political prosecutions that the US being the last superpower left standing are already in the 400 pound gorilla on the world stage depending on the way you want to look at it will be open and ripe for politically motivated prosecutions. It is one of the reasons why the crime of aggression avoiding aggressive war was not

included in the original statute although there are some attempts now to whom it had protocol adding the finding that very slippery crime of aggression an attitude to the court's portfolio. The other issue being the US didn't want to submit US military or even political leaders and US military members to jurisdiction of this court where they might be. It was perceived they might be subject to politically motivated prosecutions. There's a lot of safeguards built into the ICC treaty in my opinion and there's certainly a lot of argument on the other side which I respect. This is another whole show I think I can find you some people smarter than me on the ICC for that as well. My personal opinion is I think we missed an opportunity. The United States has from its inception its inception as a nation been a leader in the forefront of international respect for law and codification of international law and I think we're missing an opportunity for continuing our leadership in that area. The second question

is more an oxymoron if you will not be surprised as opposed to here I have heard that before. It is a law of war an oxymoron. You should also probably not be surprise for me to say no I don't think so. There is. There are some troubling contradictions in the law of war however that I've thought and agonized over for many years. One of them is it seems that the law of war spends a lot of time worrying about protecting people in uniform and not a lot of time worrying about people that are innocent civilians whether they're enemy civilian population not engaged in the fight or just persons occupying or who are citizens of occupied territory and effect shifts a lot of the risk of armed conflict onto these people I think inadvertently on that is a conscious conspiracy to do so. And I'm not sure how to fix that. However the the the basic underlying norm of this international law of armed conflict or international

humanitarian law is the Red Cross likes to call it the whole International Red Cross movement really started in the 1850s by a regional is to try to ameliorate the worst excesses of armed conflict and for to protect as best as they can the victims of war. And that includes a whole lot of people that includes innocent civilians that includes the sick and wounded on land the sick wounded and shipwrecked at sea. Prisoners of War and the idea being we do what we can to ameliorate the worst abuses of those people because they are the ones that are the most helpless in a time of war. I think my personal opinion again is that the law of war does some good and there is a reciprocity element built into it which is kind of a self-interested good. It's really one of the probably the most powerful enforcement mechanism in the law of war is this reciprocity issue. We treat your captured soldiers well because we hope that that will encourage you to treat our captured soldiers well. Now that may have been is honored in the breach. In the past as it has been

in actuality but on the other hand things could have been a whole lot worse without the presumptive norm of humane treatment. I suppose that that's where people would would end up a discussion they'd say you know going back to this thing we're talking about well who who is a prisoner of war and who should be covered by the Geneva Convention I suppose some people would say you know it doesn't really matter you know what we should do is we should afford everyone that same treatment not because we're trying to be nice to them but because we want to make sure that our our soldiers any American who is taken prisoner is treated in the same way. Yeah I mean there are this is a question that we talked about right before we went on the air David which is the ultimate overhanging question here is the so what question I've been asked that many times when we do annual training for all uniformed military personnel in the U.S. military and as one of the questions I got you know usually from some smart young sergeant the back of the room saying all right sir so what. Why do I care. You know the status of personal

Kuantan how they're treated for example. So what. So what if we don't treat them like prisoners of war so what if we send in the military commissions rather than to courts martial or U.S. district court. There's really three responses to that that I would make one is the reciprocity issue which is one as a former military lawyer is very near and dear to me. The second is one we've touched on already which is the US has I think a moral obligation to lead in this area. We were a nation founded upon the integrity of the individual that every person is equally worthy of of being given the same rights as an individual. We don't want to get into a situation where there are lesser people individual is an individual and till such time is through due process some of those rights are taken away. And the third one which is little more pragmatic from the military planners point of view a lot of campaign planning and campaign plan writing when I was in the

military as well. One of the things you do. Planning a military campaign is you. You analyzed what was referred to as the enemy's center of gravity one of those things we can attack to gain a victory most efficiently. But on the flip side you also analyze what's referred to as friendly centers of gravity those things of ours that we really got to protect that are most vulnerable and could lead to us not succeeding if the enemy managed to get to those. Well when you're this overweening military power I mean nobody can touch us as far as technology and guns and tanks and airplanes go. The issue becomes more slippery centers of gravity one of those is one that for lack of a better phrase I refer to is as the American high moral ground. The American people will support a conflict unless they think we've become the bad guys. Vietnam arguably the spite the downward spiral in Vietnam of public support was for rightly or wrongly it was perceived that American soldiers had become part of the bad guys team not the good guys team and scrupulous respect for this legal regime that we

helped to create and that the rest of the world expects us to comply with as well keeps us with the white hats keeps us as the good guys and we start this and I'll tell you this last several months has just been brutal in that regard. From Abu Ghraib onward in the last month these Marines. Television videotape of Marines shooting wounded and almost dead insurgents in Fallujah in a mosque of all places. Really. We haven't heard what the full story was there yet and I'm willing to withhold judgment on those Marines. And so we do here. But just that the image was just horrific and you being beaten up by our closest allies the Canadians the Europeans about treatment Guantanamo. I mean it just it's the kind of thing that preceded the collapse of support for Vietnam it makes me very uneasy. So it's a little champagne county line number three below. I've been urged to be brief since we've got a full list. But people that want to talk but I've just been going through the ACLU I understand you remember the document

drop from the FBI. And there's a lot of stuff there to look through a lot of it's really disgusting six lit cigarettes and years in Guantanamo and chaining people in the field position for 24 hours letting them f AK where they are in place. I've heard about that we've heard about this but this comes from the FBI it's curious that they would release it they're usually very bad about foil suits but. One thing that bothered them was that the Guantanamo interrogators were claiming that they were with the FBI under under false pretenses which is I don't know what legalities that I have and nothing about Guantanamo strikes me as very very legal. As you were on the amicus brief I'll try to stay focused here a little bit. What do you think of the response your colleague Ruth Wedgewood was fine with not having that I heard her all over the place but once it was some kind of procedure was what was it

called far. It didn't specify very much of what and I know that some of the Jags that they got to do the these panels are not satisfied with with the circumstances. It isn't like they're actually being allowed to have a habeas corpus there. They just had to do something and it doesn't look too good to me and I don't know how how you feel about it you know because you're on the amicus brief. But I did have. Well OK I want to ask a little clarifying question here yeah I mean thanks for bringing up those FBI documents that's another one of the bombshells of the last several months or just spin really body blows and a lot of ways to the image of the U.S. are you talking about procedure you refer to you're talking about the the detention hearings that they've they've instituted or are you talking about the commission the military commissions themselves. Yeah that's the one things. Needs to be sorted out well the response of the Supreme Court that they have to do something in the way of an ersatz habeas corpus so I guess I'm

talking about these these these things that are. I mean I know there's conflict on all those levels I know there's a Jag. You were with the Jag group that filed the amicus brief calling for some kind of action. There's a New York law board that called for action filed amicus briefs to one of the actions that they would like to institute is to have everybody who was involved in calling the Geneva Conventions quaint disbarring them which would include this professor that Harvard Law School is trying to hire named Jack Goldsmith the assistant attorney general. I'm just you know I I think you share my outrage. Maybe yeah maybe you can. I wouldn't want to. I wanted you to sort of sort out how you feel about the response to the address that you called for is it satisfactory it doesn't seem to me. Short answer no it isn't satisfactory yet. However I would be a good international lawyer if I didn't have one. And However I think we're making some progress

through the federal courts now. These cases are in the federal courts and remains to be seen what they're going to do with them. It's well overdue mind you don't forget in response to the Supreme Court's decision in the case we answered the question about whether one is a rights free zone or not. I was not sure how many rights attach there in this different court was very obtuse in that the question was is do the federal courts have any jurisdictional reach over the territory of Kuantan him obey and Supreme Court. Answer I think fairly clearly is yes they do. You get habeas Kuantan of them and that was that was a question that was in play for a long time. The government was relying upon an old case called Johnson v. Eisentrager where the U.S. seemed to ignore the Supreme Court seemed to imply that there would be no habeas for anyone captured and under the control of U.S. forces outside the U.S.. Anybody who took even a cursory look at the Guantanamo Bay treaty however which is a very short instrument I think it's only six articles on a page and a half maybe one of the articles I don't recall the number right now but it wouldn't take you long to find it such a short treaty.

The Cuban government ceded all civil and criminal jurisdiction to the United States. And interesting for a treaty there was no unilateral met a mechanism for getting out of the treaty so the US could stay in Guantanamo as long as they wanted most treaties by the way will say something like either party can get out of the treaty if they give a certain notice in a period of time to the other party. You know usually a year or two or however long and we don't want to do this anymore we want to reason the treaty off the Guantanamo treaty has none of that see the US can stay forever as long as it wants to. And the Cuban government gave it all civil and criminal jurisdiction. Sure you know that you apply the Bush one President Bush one duck test principle that sure looks like jurisdiction to me and looks and quacks and walks like jurisdiction and the Supreme Court agreed on that and they said so you do have access to U.S. courts but they didn't really go into any detail as the Supreme's often don't. They'll set down a basic principle and let the lower courts chew on it for a while which sometimes is a good thing. And that's all right right

now as we're having lower courts chew on this right now to see just exactly what kind of redress these gentlemen at Guantanamo get. Oddly enough there is a piece in The Post The Washington Post just a few days ago where these men were barely brought into a room one at a time in Guantanamo and said hey we did one of these detention hearings for you which they just started five or six months ago to review whether they're being lawfully held as an enemy combatant which is a whole nother issue and that the term enemy combatant doesn't exist in the law of war. It's a creation of U.S. law not international law. And oh by the way if you object to that. Here's the address of the federal courthouse in Washington you can write to. You know imagine being sort of you many who doesn't speak English brought into this room and given this three paragraph letter saying if you if you feel bad about having to stay here you can write to the federal courthouse in D.C.. Well they're also being. Told that they've had a detention hearing. Yeah as opposed to having been involved in one. Well I mean the detention hearing issue is revolves around Geneva I think revolves around Geneva 3. Requirement under Article

5 that says if you're in doubt as to somebody's status you're supposed to have a tribe in an undefined tribunal of some sort. Decide whether this person is a prisoner of war or not whether competent tribunals right or whether I guess that all this week applies that they aren't the people that are actually just the people that are holding them. There are a lot of people waiting so on. But keep it up and I'm sure you're on the other side of the issue with your colleague Ruth Wedgwood. She's the person that usually goes to and I tried to search for some of your material in advance and. This blue group I want to ask you about that too because what didn't didn't come up on the web at all so I didn't. Anyway keep watching I got you know. Well thanks for the call. We are into about our last 10 minutes in this part of focus 580 again very quickly me introduce Again our guest Jeffrey Walker he's a retired military officer retired lieutenant colonel in the Air Force. He served as judge advocate in the air force between 88 in 2003. He is now senior fellow at

the Institute for International law and politics at Georgetown where he's working on his Ph.D. in international relations he's also got his law degree there from Georgetown and is interested in the kinds of things we're talking about here this morning including national security law and law of war. Questions are welcome 3 3 3 9 4 5 5 toll free 800 2 2 2 0 9 4 5 5 on again to another call of Bloomington Indiana. A line for a pillow. You said that that little effort was usually made to avoid civilian casualties. It seems to me that both our forces and the Israeli forces have taken great care to avoid civilian casualties. That's the first way. We have void civilian casualties is precision guided weapons. We literally captured Iraq with or without destroying much but not not much military property. We even knew as reporters they marveled at how little damage was done. And in Iraq the city's

biggest Really idea else they regularly kill specific terrorist commanders they'll kill these terrorist commanders with very little collateral damage. Sometimes they'll hit a specific office they'll put a missile through a specific office window. They'll kill the target. A terrorist commander without even hurting the people in adjoining offices. I think I don't want to interrupt you because this is a fascinating area that I work very closely in for many years and I'd like to talk about it for hours with you. However I don't think I didn't actually say I don't think and if I did I completely was was was mistaken that little effort is taken by U.S. forces to avoid civilian civilian casualties. Monumental efforts are taken. In my experience I mean I have been on my hands and knees with satellite imagery with the three star general who is going to make the go no go decision with a magnifying glass picking corners of empty warehouse buildings to bomb just to minimize any potential for any damage to joining civilian facilities so I personally have a lot of experience in that area and I am 100 percent in agreement with you that U.S. forces

particularly with the advent efforts. After the Gulf War one of the heavy reliance upon precision guided munitions that we've made great strides in that in that in that arena the problem of course comes down to the issue of what's called the proportionality test. If you look at a target that's very important and major commanding control centers something for enemy forces and it's right between a hospital in an orphanage. Now you've got a problem. You are going to kill some civilians in those adjoining buildings but it is an incredibly important target that may tip the balance in the operation what do you do. Well the commander is it is it is incumbent upon the commander responsible to put directly on him by the law of war to make to weigh any chance OK fifty dead civilians versus the value of this target which one is more important. That is a really tough decision to make. And unfortunately. A lot of times the civilians lose in those Riya and those situations in the law of war does not make civilian

death incident to military attack illegal. It makes disproportionate civilian death or injury from military attack legal. Now we have to decide in defining what disproportionate is. Now there is a problem for you. Well you know I think probably one of the things that concerns people a lot is if you look at military conflicts say since the end of World War 2 the ratio of civilian deaths to military deaths has with the number of military deaths has gone down but the the number of civilian deaths has actually gone up. It seems there is a ratio as a ratio that we're you know that we're having an awful lot of what in the business is called collateral damage. Yes and I think that you would agree that is that it should be an overall a greater concern perhaps than it is. I'm not sure I would agree with that David simply because I know how much effort is put into it. We do an air campaign and I of course I'm an old airman who spent a lot of time in our operations centers as a legal advisor and the issue of civilian collateral damage hangs over an AOC like a

cloud. Constantly daily hourly minute to minute. You know you want the first thing you want to see coming off. When one strikes already for example is coming off target is first of all to get the target second. And you know question one did we get the target question one a. What about collateral damage. Instantly as we want to know about. The problem of course is that that is policy affecting us again in the coastal area where for example the US took a lot of flak for flying really high for flying and I don't even remember now what the altitude was 20000 feet I think. You weren't allowed to fly below 20000 feet which meant especially with the weather in that part of the world is difficult to actually get eyes on a target to see if they're dirt changed conditions to that target if there is you know convoy of school buses were driving by or there is a civilian train on the bridge or what have you. And the US took a lot of criticism. US NATO and NATO both not just the United States naval forces that you were trading the safety of soldiers the guys flying the airplanes a pilot for the safety of civilians. That is a very tough moral argument to make.

Do we get more risk of these guys getting shot down by ordering them to fly lower so they can be more accurate they can identify targets to make sure there's no civilians in the area. Or do we shift some of that risk on to civilians. That's a very very difficult problem. I mean we I said at the time I mean I thought personally that at the time that the al to restriction was too high although I had a lot of friends fine there. Do we find ourselves like Otto von Bismarck that you know who famously said that the Balkans were not worth the bones of a single Pomeranian Grana dear. You know were they not worth the bones of a single Naval pilot either. You know the guys in uniform signed up to take some risk. But on the other hand being one of those guys in uniform myself and when I knew my days and I was flying bombers I felt very good that we try to minimize the risk to the people in uniform so it's a very difficult moral quandary trying to get at least one more call will have to be brief here will go to one one in Champaign. Hello.

Thank you sir. We talked to they had use of this anyway but I want to ask more directly. Is there anything it's not an US law than international law to secure code human rights that we extend you know the right to counsel and you know just general human rights to anyone regardless of whether or not this specifically falls under the Geneva Convention. And I give you about a minute and a half and yeah there is within Geneva 3 certainly if you're a prisoner of war there's there's a hole. There are procedural rights to that you're afforded. Generally speaking if you're considered a prisoner of war and are going to be tried with an offense and don't forget calling somebody a prisoner of war and giving them prisoner of war status is a Get Out Of Jail Free card. You can still be tried for crimes violations of the law of war killing civilians or what have you. But you are generally required to be tried by the same kind of tribunals that your own soldiers would be tried for. And the U.S. would be by court martial or by in federal court. You know one of which could try a U.S. military

member. There are certainly guarantees in for anywhere any time. Due process guarantees are integral parts of a great number of human rights treaties for example the International Covenant on Civil and Political Rights to which the US is a party has a long list of due process guarantees privilege against self-incrimination. A confrontation of witnesses against you. Public pronouncement of sentence. Right to counsel right to cross-examination. The things that you would recognize an American courtroom essentially an additional protocol one which was updating a revision of the Geneva Conventions in 177 to which the U.S. is not a party we signed but we haven't ratified but probably codifies most of the customary international law in this area has a long litany of fundamental due process guarantees that prisoners of war get in Article 75 of additional protocol one which again is the whole US Bill of Rights a list if you will of things a right to counsel right to

cross-examination right to confront witnesses etc. etc. So yeah. Good point thank you. Shouldn't there just be a basic floor B which below which no human being anywhere on the face of the earth is allowed to fall. I would say yes. And I'm not convinced that we haven't reached that floor in Guantanamo. So much more we just grabs the surface perhaps on another day we can talk some more but we'll have to say thanks very much thanks David it was a pleasure going to be back home in Illinois. Jeffrey Walker He's senior fellow with the Institute for International law and politics at Georgetown University and also served as judge advocate in the U.S. Air Force from 88 to 2003.