Letter of Lawyers Committee for Human Rights, on Guantanamo detentions, Jan. 30, 2002

January 30, 2002

President George W. Bush
The White House
Washington, DC

Dear President Bush:

We welcome recent reports that you are re-examining questions about the applicability of the Geneva Conventions to those detained in Guatanamo Bay. Your consideration of a wide range of informed viewpoints demonstrates the political vitality of our society. It also reflects your own willingness to debate internal differences within your Administration on contentious issues, even in these difficult times.

We are eager to add the voice of the Lawyers Committee for Human Rights to this discussion. The Lawyers Committee shares your concerns about those who orchestrate or commit violence against innocents, whether in the United States or elsewhere. We also condemn the grave and systematic human rights violations committed by the Taliban during its rule, and believe that Taliban leaders should be held accountable. We are hopeful, as you are, that the people of Afghanistan can begin to build a government that will give them greater freedom and protection against renewed abuses.

In bringing perpetrators of international crimes to justice, it is, in our view, in the U.S. national interest to demonstrate unambiguously America's commitment to longstanding principles of international law, including the Geneva Conventions, and applicable human rights law.

We make our recommendations to your Administration confident that compliance with the Geneva Conventions is fully consistent with accomplishing U.S. goals and with the values your Administration has expressed:

• Detaining dangerous combatants. The Geneva Conventions allow the United States the power to detain until the end of hostilities any Al Qaeda and Taliban forces that are presumed to be, or found to be, prisoners of war (Third Geneva Convention, Art. 118).
   
• Securing information to protect against future attacks. The Conventions also allow active interrogation of prisoners of war. Prisoners of war are obligated to provide only certain basic information to their captors. Nothing, however, prevents the U.S. government from further questioning, subject to the prohibition against torture and cruel and inhuman treatment, which applies to everyone, and applicable protections against self-incrimination (Third Geneva Convention, Art. 17).
   
• Bringing those responsible to justice. Compliance with the Geneva Conventions also allows detention and prosecution in military or civilian courts of presumed prisoners of war captured in Afghanistan, if they have committed war crimes or other serious violations of international law. Indeed, the Conventions mandate prosecutions for grave breaches of them (Third Geneva Convention, Art. 129; Fourth Geneva Convention, Art. 146).
   
• Succeeding in the wider global campaign. In the coming days and weeks, the Geneva Conventions and applicable human rights instruments, such as the International Covenant on Civil and Political Rights, will provide a much needed legal roadmap as to what is and is not allowed under international law. For instance, there is the question of individuals who are arrested outside of Afghanistan and sent to Guantanamo. While those captured in Afghanistan are legally presumed to be prisoners of war until a competent tribunal determines their status, those apprehended elsewhere are in a different category (Third Geneva Convention, Art. 5). For example, the alleged acts of the five men recently transported from Bosnia�reportedly sought in connection with conspiracies in Algeria and Egypt�fall outside the war zone. In these and other similar cases if they arise, the Geneva Conventions and applicable U.S. and international human rights law set out a process to determine the appropriate legal treatment for these individuals.
   
• There are other persuasive reasons for this course of action. Foremost among them is the effect that U.S. actions will have in influencing the conduct of other governments around the world. The growing perception that the U.S. is operating outside of international law may shift international focus�even among U.S. allies�from your Administration's current goals to concerns about U.S. non-compliance with applicable international law. Historically, commitment to respect for law has helped define the United States as a nation. Today it is more important than ever for the U.S. government to be living up to this commitment.
   

By acknowledging the legal applicability of the Geneva Conventions, and complying with them, your Administration also will protect American service members overseas. The unqualified commitment of the United States government to international humanitarian law affords a strong measure of protection for U.S. citizens who may be captured in the present or in future conflicts. In the past, the experience of the U.S. military has been that compliance with the Geneva Conventions has significantly mitigated severe treatment of U.S. prisoners in wartime situations.

The United States has much to gain by expressly complying with the Geneva Conventions and other international legal standards in these and related matters. It has much to lose by not doing so.

We welcome your Administration's thorough review of these matters. We stand ready to meet with representatives of your Administration to discuss these matters further or to provide you with additional material or information.

Sincerely,

Michael Posner
Executive Director