POWs and others: detainees do not share a single status.

THE American people were rightly shocked, outraged, and ashamed at the abuse of Iraqis at the Abu Ghraib prison in Baghdad. All detainees, including Saddam Hussein loyalists and foreign jihadists, are entitled to a humane level of treatment that should have precluded their sexual assault and humiliation. The individuals who perpetrated these offenses disgraced themselves, dishonored their uniforms, and gravely damaged the national interest in time of war. They can, and should, be severely punished. If evidence emerges that some military officials, while not directly engaged in the detainee abuses, may have fostered an enabling atmosphere or lax discipline, or generally exercised poor leadership, they too must be held accountable. Institutional reforms also should be considered, including a more rigorous training for reserve MP units.

Nonetheless, claims that the Abu Ghraib abuses were somehow permitted, or at least encouraged, by the Bush administration's overall approach to the Geneva Conventions, either in Iraq or in the War on Terror more generally, are groundless. The administration's interpretation and application of the Geneva treaties has been, and remains, fully consistent with U.S. international obligations. The critics who argue otherwise are either mistaken or using pseudo-legal arguments to advance a policy agenda, one aimed at nothing less than a fundamental recasting of the entire traditional American approach to war--a change that would severely harm U.S. national security.

To begin with, the U.S. and its allies have--setting aside Abu Ghraib--compiled an exemplary record of compliance with the laws of war, in both Afghanistan and Iraq. Exceptional care has been taken to minimize collateral damage, ensuring that the tens of thousands of civilian casualties, widely predicted by the Iraq war's opponents, never materialized. Senior U.S. officials also have taken special care to avoid demonizing the enemy, consistently emphasizing that America's fight is with a small, radical fringe of Islam or with Saddam Hussein and his Baathist regime. In Iraq especially, attacks against infrastructure targets were minimized, and extraordinary efforts have been made to improve energy, water, sanitation, and other services; these efforts were launched even while fighting was still in progress. The occupation of Iraq has been benign by any previous standard. The U.S. is, in fact, pouring billions of dollars into Iraq, rather than taking resources out--even though its troops have been faced there with a brutal and ruthless insurgency that has itself eschewed any effort to comply with the laws of war, including the four 1949 Geneva Conventions.

LEGALLY SOUND

That, of course, is not the impression given by the politicians, journalists, and advocacy groups that have attacked President Bush and his national security team, with increasing vitriol, since the Abu Ghraib photographs surfaced. Some of these critics have accused the administration of a "contempt for the rule of law"--the Washington Post's phrase--and have suggested that the abuses in Iraq stemmed from the president's decision, early in 2002, to deny Qaeda and Taliban operatives the rights and privileges of "prisoners of war" under the Geneva Conventions. This decision was supported by a January 25, 2002, memorandum, authored by White House counsel Alberto Gonzales, and by a January 9, 2002, memorandum prepared by the Justice Department's Office of Legal Counsel. These documents have been described in the New York Times as having "explained how to skip prisoner rights." In fact, these memoranda correctly stated the law, and the president's decision was grounded in very sound policy considerations.

The laws of war have traditionally distinguished the regular soldiers of states--who are subordinated to an organized command structure, wear uniforms, carry their arms openly, and otherwise operate in compliance with the laws of war--from irregular combatants, such as al-Qaeda and the Baathist insurgents, who do not follow these basic rules. Such irregulars are often referred to as "unprivileged" or "unlawful" combatants. The latter term has, unfortunately, caused much confusion over the past two years, suggesting to some that captured unlawful combatants must be treated as criminal suspects. In fact, although unlawful combatants could well be prosecuted for violating laws of war, they also can simply be held as prisoners until the conflict ends. At that time, they must be repatriated, or tried before a military court.

In addition, during their captivity, unlawful combatants are not entitled to the rights and privileges of POWs under the Geneva Conventions. Although all prisoners are entitled to humane treatment under international law, the Third Geneva Convention guarantees many other rights to POWs. For example, it requires that they be housed in "dormitories," with adequate heating and light, and protected from "dampness." They must be given the means of preparing food for themselves, and a "canteen," where they can obtain "foodstuffs, soap and tobacco and ordinary articles in daily use." The profits of this canteen must be used for the prisoners' benefit, and their representatives must be involved in that establishment's management. In addition, "the practice of intellectual, educational, and recreational pursuits, sports and games amongst prisoners," must be encouraged, and the necessary equipment provided.

It is, of course, these provisions to which Alberto Gonzales was referring when, in his 2002 memorandum, he described portions of the Geneva Conventions as "quaint." Those treaties were drafted in 1949 to address the issues presented by a war that had started in 1939: a conflict between states that was fought with mass, conscript armies. As a consequence, when the Geneva Conventions were adopted, POWs were largely assumed to be decent, honest boys who, had they not been caught by history's tide, would have preferred to remain at home, and whose detention should, therefore, not be burdensome. Geneva POW status was not designed for individuals waging a religious war whose first act was to repudiate the laws of war wholesale, and to directly and purposefully attack civilian targets--with the intent of killing as many civilians as possible.

If this system, which denies honorable POW status to unlawful combatants, seems harsh to 21st-century Americans, it was designed to be harsh. Experience has proven repeatedly that irregular forces, operating as unlawful combatants, present a far greater danger to civilians (who are the special object of protection under international humanitarian law) than do the organized and disciplined armed forces of states. Indeed, the creation of rules that severely disadvantage unlawful combatants was one of international law's first major humanitarian advances--fostering conditions for the establishment of regular, disciplined armies capable of respecting the laws of war and inclined to do so. By contrast, granting the benefits of lawful combatancy to unlawful combatants, treating captured Qaeda men or Iraqi insurgents as POWs, fundamentally undercuts these most basic incentives to operate within the laws of war, and will cost the lives of innocent civilians. It is emphatically not a humanitarian measure.

This is especially true in the War on Terror. In this conflict, the armed forces must not merely defeat the opposing forces, they must preempt attacks on civilians and civilian targets, both at home and abroad. This cannot be accomplished through the criminal-justice system, which is reactive in nature, attempting to deter future criminal activity by punishing past offenses. It can only be achieved through gathering and analyzing intelligence--so that American forces can get there first. This is where application of the Geneva Convention POW rules makes the most difference.

Although the Geneva Conventions permit the questioning of POWs, individuals with that status cannot be coerced, physically or mentally, either by threats, insults, or other "disadvantageous" treatment. Like the Conventions' other POW rules, this restriction is grounded in the assumption that the prisoners are regular soldiers in their country's armed forces, and is particularly based on the belief that they should not be forced (by fair means or foul) into action that would constitute a betrayal of their allegiance. By contrast, unlawful combatants can be subjected to coercive or "stress" interrogation methods--although they cannot be tortured or treated inhumanely. A similar standard applies, under the Fourth Geneva Convention, to individuals held as "security" detainees in occupied territory. As evidently explained in a December 24, 2003, U.S. letter to the International Committee of the Red Cross (ICRC), this treaty deprives individuals detained because of active hostility to the occupying power of the special privileges of "protected" persons, with the exception of a right to humane treatment, to the extent that those privileges would prejudice the occupying state's security. This is both to protect the occupying forces, and to enable them to comply with their other obligations under the Convention--including the requirement to provide a secure environment for the occupied population in general.

Of course, although the use of "stress" methods of interrogation may be legally permissible, they remain highly controversial. In principle, these involve measures designed to isolate and disorient the subject, such as solitary confinement and blindfolding, and to impose physical stress by sleep interruption or deprivation. The overall idea is not unlike military basic training: to remove the individual from familiar faces and routines, and to replace these with highly stressful conditions designed to break down old attitudes and replace them with new ones. Experts disagree on the overall efficacy of stress methods, and there is no doubt that, when taken to extremes, or applied by inexperienced, ill-disciplined, and/or sadistic interrogators, they can result in terrible abuses.

THE RIGHT POLICY

Whether the U.S. should continue to use such methods is clearly a fit subject for a serious debate, as is the question of whether it should grant POW rights to individuals who, legally, do not merit that status. That debate, however, should be framed in terms of policy, and not of law. The U.S. already is acting within the bounds of international law and the Geneva Conventions--despite the claims and suggestions of the administration's critics, including the ICRC and similar groups. It should be recalled that, however humanitarian the nature of their mission, these groups also have policy agendas, and this is particularly true of the ICRC.

The ICRC has, in fact, been one of the most tenacious opponents of U.S. policy since the start of the war, having consistently criticized the administration's decision to withhold POW status from al-Qaeda and the Taliban--even claiming for a time, despite a mass of contrary authority and evidence based on actual international practice, that there was no category of "unlawful combatant." In 2003, the ICRC broke with its traditional rule of public silence and openly attacked the supposed "indefinite" detention of Qaeda and Taliban operatives at Guantanamo Bay, Cuba. This assertion was also fundamentally inconsistent with the laws of war, which permit the detention of all enemy combatants, lawful or unlawful, for the duration of hostilities--to ensure that they cannot return to the fight and, thereby, prolong the war. Most recently, the ICRC took the opportunity, presented by the Abu Ghraib abuses, to "confirm" authorship of a report, "leaked" to the Wall Street Journal, which claimed to document serious American "violations of International Humanitarian Law."

This condemnation has, in turn, been seized upon by administration critics to justify their own assertions that the refusal to grant Geneva POW status to al-Qaeda and the Taliban somehow caused Abu Ghraib. That reliance is misplaced. First, although the ICRC enjoys a unique status under the Geneva Conventions--in visiting prisoners and facilitating communication with their home countries--it is not an oracle on those instruments. In the 1950s, the ICRC sponsored a series of commentaries on the Geneva Conventions that are often called "authoritative." However, this is because of the compilers' comparatively painstaking attention to the negotiation record of the treaties, and not because the ICRC has some roving commission to construe the Conventions as it sees fit. In fact, like international law in general, the meaning of the Geneva Conventions ultimately depends upon the actual practice of states--each of which has the right to interpret and apply the treaties for itself.

Second, it is debatable whether the ICRC continues to merit the reputation for "impartiality" that it enjoyed in 1949. The ICRC has increasingly supported the development of international norms that disadvantage states and advantage non-state actors. This is particularly the case with respect to the 1977 Protocol I Additional to the Geneva Conventions, which provides additional protection to irregular or guerrilla combatants, as opposed to regular soldiers. (For example, under Protocol I, regular armies can be attacked at any time, while irregulars can be attacked only when they are themselves attacking--effectively giving such irregular forces the initiative in combat.)

Although President Reagan definitively rejected Protocol I (on this very ground), the ICRC continues to promote its application to the U.S., actually referring to that document in its report relative to Abu Ghraib. It does not, of course, explain that the U.S. is not bound by Protocol I. It does not make clear that, although many of Protocol I's provisions do restate customary international-law principles (which would bind the U.S.), it is necessary to analyze the instrument provision by provision, and sometimes word by word, to determine which sections enjoy that status. Most important, the ICRC does not identify which of its conclusions against the U.S. are based on the provisions of Protocol I and which on the 1949 treaties themselves.

Given this agenda, it is hardly surprising that the ICRC has opposed President Bush's interpretation of the Geneva Conventions. The desire of the ICRC and similar groups to revise centuries-old norms that limit POW rights to lawful combatants may well be based in a humanitarian impulse; but if POW status is to be extended to every detainee, regardless of his actions before capture, there will be a cost, and that cost should be recognized. By treating all captured combatants the same, a critical incentive for irregular forces to comply with the laws of war will be removed, and their methods of warfare legitimized. The flow of intelligence information about potential future attacks will certainly be restricted, and may well cease altogether. It may be that, in the end, the American people will decide to pay this price. If they do, however, it should be with the full understanding that this is a choice based on policy, and not dictated by the law, and that there are valid humanitarian considerations on both sides of the question.

Americans should also appreciate that, for many of the administration's critics, the real issues transcend the treatment of detainees. They seek to recast the American way of war, away from the decisive use of force--subject to the traditional, broad, and flexible legal rules--to something more akin to a police action or a peacekeeping operation, driven by strictures that closely resemble peacetime criminal-justice rules. These rules, among other things, seek to impose a goal of near-zero collateral damage, to ban numerous weapons systems, and to disadvantage law-abiding military powers. The fact that the U.S. remains one of the few active defenders of the traditional system, and that we face a grave threat from rogue warriors who have deliberately abandoned all legal restraints in their use of force, makes the current debate all the more consequential.

Messrs. Casey and Rivkin are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush Sr. administrations.