Council for Civil Liberties
Conferral of life membership on John Marsden
We meet here tonight to honour John Marsden – rather, to acknowledge the honour accorded him by the Council for Civil Liberties.
John Marsden is only the third recipient of life membership of the Council for Civil Liberties. It is a very great honour and by your presence here tonight you mark your endorsement of that honour.
John’s career is a record of contribution to the community, distinguished by a forthright style and brutal honesty. Above all, he has shown great strength in adversity.
As a criminal lawyer working in the brick and bitumen suburbs, he is keenly aware of the structural disadvantages faced by the poor, the homelessness, the marginal and the disadvantaged when they confront the majesty of the law. In his capacity as President of the Law Society, he spoke out publicly on access to justice, legal aid funding and equality before the law.
He has always taken a strong position in support of unpopular minorities, notably homosexuals, aborigines and refugees. Little wonder then that he made enemies. Little wonder that those enemies would eventually seek to destroy him.
Obviously his open homosexuality made him a target of the prejudiced and powerful. Even in a city as open and carefree as Sydney, old prejudices about homosexuality thrive. It is an insult to all gays that many heterosexuals still imagine that homosexuality and paedophilia go together. It is as absurd as the notion that all heterosexuals are paedophiles. But where prejudice has poisoned the mind, facts count for nothing and an allegation of paedophilia is considered more plausible if levelled at a gay than if levelled at a heterosexual.
Channel 7 must have thought John Marsden was an easy mark. I wonder if they ever imagined that he would sue them.
John is a solicitor, and a very experienced one at that. He must have calculated, at least approximately, the risk associated with suing a media giant. Where instinct would dictate smouldering silence, John preferred to take them on. Most people here are better acquainted than I with the details of the gruesome fight which followed.
He won the fight, but at a terrible cost. If this was a win, what does defeat look like? Perhaps the award we celebrate tonight will go some small distance toward healing the wounds inflicted by Channel 7 in its ferocious defence.
The whole episode raises the question implied in the title of my talk: Can you take on mighty forces and prevail?
The notion that “you can’t fight City Hall” is drawn from the title of a book published in the late 1940’s. The book was called “Go Fight City Hall”. The book spells out the ultimate futility of taking on a great force in difficult times. The book was written by Ethel Rosenberg, who was wrongly convicted as a Communist spy and was put to death in the electric chair.
It is not surprising that the expression “you can’t fight City Hall” was popularised during the era of Joe McCarthy. At the time Julius and Ethel Rosenberg were sentenced, Julius Rosenberg said:
“This death sentence is not surprising. It had to be. There had to be a Rosenberg case because there had to be an intensification of the hysteria in America to make the Korean War acceptable to the American people. There had to be a hysteria and a fear sent through America in order to get increased war budgets. . . . ”
The Rosenbergs understood the likely – inevitable – consequences of combat with the establishment in dark times. This immediately raises a central question: Why would anyone take on City Hall? Recent history offers a few examples of people willing to challenge the establishment – and very likely lose, or suffer for their pains – and you are forced to wonder why. Where damage or destruction is as inevitable as it is in Greek tragedy, what drives a person to throw themselves at such a target? Madness perhaps, or blind optimism or tragic nobility which rarely exists outside the realms of literature.
Or perhaps it is some instinct, a sixth sense, that there comes a time to take a stand because the cost of resistance, no matter how great, is less than the cost of yielding.
I was greatly affected when I recently saw the film Hotel Rwanda. It is set against the backdrop of the genocide which occurred in Rwanda in the first half of 1994, when Hutu rebels slaughtered 900,000 Tutsis in the space of 100 days. The central figure in the film is Paul.
Paul is a Hutu married to a Tutsi woman. He is manager of a hotel in Kigali. When the Hutu uprising begins, the world turns its back on the slaughter. Paul turns the hotel into an impromptu refugee camp for almost a thousand people, and keeps them safe at immense personal risk. He calls in favours, bribes corrupt officials and witnesses unspeakable horrors. There is a key moment in the film where he has a chance to escape to safety, but decides, on an instant, to stay at the hotel until the refugees are safe. We see it immediately as an act of heroic madness – who could take on the rampaging lunacy of the Hutu mob?
The central character, played by Don Cheadle, impresses us as a man of genuine character – a person who is able to command personal resources beyond imagining. What is so deeply affecting about the film is that it is entirely true: Paul Rusesabagina succeeded in saving the 1,000 refugees who crowded into his hotel; with them, he escaped to safety; he now lives in Belgium. He has been given Amnesty International’s “enduring spirit” award; in 2000 he received the Immortal Chaplain’s Prize for Humanity.
Paul Rusesabagina immediatley brings to mind Primo Levi’s friend Lorenzo, in Auschwitz. Levi says of him:
“… he constantly reminded me, by his presence, by his natural and plain manner of being good, that there still existed a just world outside our own … a remote possibility of good, but for which it was worth surviving…”
It is not possible for any of us to know how we would respond in similar circumstances. It is undeniable however that some people have sufficient character that they recognise that there is a time to say, regardless of the cost, “this cannot happen”.
The events in Rwanda developed with astounding speed: no-one recognised in advance the direction things would take; no-one imagined in advance that the Hutu uprising would be so swift, so savage and so extensive.
The same cannot be said for the development of events in Germany during the 1930’s. The retreat from civilized values in Germany was gradual, but plainly visible. Consider for a moment the progress of Hitler’s assault on unpopular minorities:
April 1933: The Civil Servants Act provides that only Aryans can be employed as civil servants. The law provides for revoking the license of Jewish lawyers.
May 1933: Public book burnings of ”non-Aryan” literature.
July 1933: Forced sterilisation becomes possible based on racial criteria according to a new law. Around 200,000 are forcibly sterilised.
1935: Jews are prohibited from bathing in public together with Aryans.
September 1935: Jews and gypsies become second-rate citizens without full civil rights.
November 1938: Jews are prohibited from going to the movies, theatres and art exhibitions. Jewish children are excluded from German schools. Kristallnacht, 9 November 1938, sees the destruction of thousands of Jewish homes, businesses and synagogues. 90 Jews are killed.
December 1938: Jews are prohibited from driving.
January 1939: Jews are required to carry identification cards
When, in this melancholy progression, should a German citizen have spoken up and said: “This is not what a civilized country does”? The response would have been: “The law provides for this, the law is validly enacted.”
This is a compelling and beguiling answer, because it invokes the most basic democratic principle: the people, through the parliament, have spoken. But can that appeal succeed when the law in question erodes or removes a basic democratic right?
There comes a time in the history of nations when, for some unaccountable reason, basic values and accepted principles are diluted, betrayed or cast aside. The pretext may be external threat, internal strife or other great forces which call for extraordinary responses. Short of revolution, the technique usually has the trappings of democracy.
Consider Guantanamo Bay. Hundreds of people have been swept up in Afghanistan, Pakistan and other places and (possibly after a stopover in a country which explicitly allows torture) they are dropped in the camp at Guantanamo. They are held in cages, subjected to countless privations and indignities. They are interrogated and, apparently, tortured.
The regime at Guantanamo wsa conceived very soon after the US invaded Afghanistan. Its basic features were founded on an enabling memo from Alberto Gonzales. He argued that President Bush could declare prisoners held at Guantanamo NOT to be amenable to the protections of the Geneva Convention relating to Treatment of Prisoners of War. He identified several points in favour of this position:
· Preserves flexibility:
As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors …
Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
That statute, enacted in 1996, prohibits the commission of a “war crime” by or against a U.S. person, including U.S. officials. “War crime” for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as “outrages against personal dignity”). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actins taken with respect to the Taliban. …”
(The full text of the memo is in the appendix, below)
The author is unmistakably urging a path which would facilitate torture of prisoners. The author of the memo is now US Attorney-General.
The underlying assumption of Guantanamo is that, notwithstanding the advances in democracy since the end of the 17th century, the rule of law can be subordinated in times of real or imagined danger. Fortunately, the Centre for Constitutional Rights in the US has taken on City Hall. In a series of important cases, they have begun to expose and demolish. Michael Ratner of CCR is a modern hero who has taken on City Hall and, so far, he is winning.
The Regimental board at Guantanamo carries the regimental motto – proud in its democratic tradition. It reads “Honour bound to defend Freedom”. Behind the board, freedom is denied and democracy is debased.
Australia has no reason to be complacent. In Canberra, ‘City Hall’ is behaving badly. It is now generally understood that we imprison asylum seekers who come here without prior permission. (To call it detention is a euphemism to calm the conscience.) At Baxter, detainees are held in a high-tech prison, behind a 9000 volt electric fence (or, in the official jargon of the Department, ‘energised fence’).
The Baxter detention centre, 4 hours north-west of Adelaide, opened in August 2002. I first visited it in early March 2004. Stand outside, facing east: the view is a perfect Fred Williams landscape of dull grey-green scrub on red sand, stretching away undimmed by distance, to a rim of hills on the horizon.
Turn and face west: a 6-metre high electric fence which stretches away into the distance; 20 metres of no-man’s land, then another tall and glittering line of wire and mesh; inside the second fence, a series of compounds made of uncompromising corrugated iron. The compounds are so designed that the inmates have no view except of the sky; more importantly, no-one outside can see those locked inside.
Getting into Baxter is a long process: one week’s notice; fill out a form, show appropriate ID. You are then escorted to an electronically controlled gate. Through the gate and into a metal cage. After a time – five, ten, twenty minutes – the gate at the other end of the cage opens and you can enter a small demountable cabin; there you are searched and scanned; another security air-lock and you are escorted across to the visitors’ compound where you find the real tragedy, our hidden shame. Asylum seekers walk around as if still alive; they talk as if they still have a hold on rational thinking. They press hopitality on you: an irrepressible cultural instinct, like the unwilled twitching of a dying animal. But they are not wholly there: they are hollowed out, dried, lifeless things, washed up and stranded beyond the high-water mark. Their minds are gone: shredded, destroyed by hopelessness and despair. Children are incontinent from stress; many inmates are afflicted with blindness or lameness which has no organic origin: the bewildered mind’s final, mute protest.
Mr Ruddock announced Baxter as Australia’s “family-friendly” detention centre. Presumably that deceit was intended to distract our conscience. It is difficult to get there, so most Australians rely on the government’s blandishments for their understanding of how we treat asylum seekers.
Mr Howard has made it clear that the mandatory detention system, and the iniquitous Pacific Solution, are designed to “send a message”. What does this mean? It means that we treat innocent people harshly to deter others. The punishment of innocent people to shape the behaviour of others is impossible to justify. It is the philosophy of hostage-takers. Any Society which is prepared to brutalise the innocent in order to achieve other objectives has stepped into a moral shadow-land.
Journey further into the shadows and you learn more of what this lucky country is doing to an unlucky few. It is not an offence to arrive in Australia without papers. These people are imprisoned by order of the parliament, not by order of a court.
Mr al Kateb arrived in Australia in mid-December 2000. He was born in Kuwait. His request for asylum was refused. He found conditions in Woomera so intolerable that he asked to be removed from Australia. Eighteen months later he was still here because, being a stateless Palestinian, there was no country where he was entitled to be and no country was willing to receive him.
The Migration Act provides that a person who comes to Australia without papers must be detained, and they must remain in detention until either they get a visa or they are removed from the country. When the Keating government introduced those measures in 1992, one supposes that Parliament suspected that either of those two outcomes would be available in every instance.
They had not allowed for the anomalous case of stateless people. You might think that a government which has paraded itself virtuously as committed to a fair and decent society, committed to family values, might quickly amend the law to account for these few anomalous cases. But what the government did, in fact, was to argue at every level of the court system that al Kateb, although he has committed no offence in Australia, can be held in detention for the rest of his life. The government won in the High Court, on 6 August 2004.
The thought of an innocent person being jailed for the rest of his life is shocking. Anyone, even the most hardened, must find it a dreadful thing to imagine the circumstances of a person being held in detention forever when they have not committed any offence. It should be a matter of real concern that a government ostensibly committed to a `fair and decent society’ is willing to argue for the right to jail the innocent for life.
Time does not permit me to speak of the unregulated use of solitary confinement in Baxter, and the other detention centres. Detainees are frequently held in solitary confinement for weeks at a time. The Management Unit at Baxter is a series of solitary confinement cells. Each cell is three and a half metres square. The cells are made of bare concrete. The only furniture in the cell is a mattress on the floor. The occupant of the cell has no television or radio, nothing to read or write with, no company, no privacy because it iss video recorded 24 hours a day. The cell is lit 24 hours a day. The occupant of these cells typically engage in three types of behaviour: they sleep fo hours, usually in the foetal position; they pace around the cell for hours and – most disturbing of all – they sit with their knees drawn up and rock back and forward for hour on end. If the person’s behaviour improves, their “privileges” (ie basic human needs) will be progressively restored. These are innocent people. None of this is authorised by a court.
Most Australians were shocked when we learned that Cornelia Rau had experienced this: we seem less shocked when it happens to others, outsiders.
But it’s the oldest trick in the politicians’ book: if you make a group sufficiently unpopular, you can ignore their humanity: Jews, gays and Gypsies in the 1930s; muslims and terrorists today; gays again soon, perhaps. Wait for talk of dissident elements…
It is time to speak. It is time to take on City Hall. The values we once shared as a nation are being destroyed.
We need more people like John Marsden who know that there comes a time when it is better to fight,whatever the cost, than to give the game away.
But Hitler had also been engaged in enterprises which the world would eventually deplore; much of what he did was masked in falsehood; and what was seen and known of is worst excesses was covered over, or denied or ignored by allied powers who did not find truth convenient in that desperate time. The allies knew of Hitler’s persecution of minority groups, they knew of the death camps, but they did nothing.
In his closing address at Nuremberg, US prosecutor Robert Jackson said:
“Lying has always been a highly approved Nazi technique. Hitler, in Mein Kampf, advocated mendacity as a policy. Von Ribbentrop admits the use of the “diplomatic lie.” Keitel advised that the facts of rearmament be kept secret so that they could be denied at Geneva. Raeder deceived about rebuilding the German Navy in violation of Versailles. Goering urged Ribbentrop to tell a “legal lie” to the British Foreign Office about the Anschluss, and in so doing only marshaled him the way he was going. Goering gave his word of honor to the Czechs and proceeded to break it. Even Speer proposed to deceive the French into revealing the specially trained among their prisoners.
Nor is the lie direct the only means of falsehood. They all speak with a Nazi double talk with which to deceive the unwary. In the Nazi dictionary of sardonic euphemisms “final solution” of the Jewish problem was a phrase which meant extermination “special treatment” of prisoners of war meant killing; “protective custody” meant concentration camp; “duty labor” meant slave labor; and an order to “take a firm attitude” or “take positive measures” meant to act with unrestrained savagery. Before we accept their word at what seems to be its face, we must always look for hidden meanings. Goering assured us, on his oath, that the Reich Defense Council never met “as such.” When we produced the stenographic minutes of a meeting at which he presided and did most of the talking, he reminded us of the “as such” and explained this was not a meeting of the Council “as such” because other persons were present. …”
Those words were spoken in 1946. The path to Nuremberg began less than 20 years earlier, with small but increasing erosion of the civil rights of the Jews, the gypsies, homosexuals and Communists. One of the most puzzling aspects of this part of history is why nothing effective was done when there was still time to act. It is possible that Germans thought “You can’t fight City Hall”. What was a German citizen to do, when he say signs go up in parks which read “Juden verboten”? What to do when your neighbour’s shop was smashed or looted? How should you respond to the sight of a Jew being beaten up and left for dead in a public street? What should a German citizen do when laws were passed which confiscated Jewish property, provided for incarceration of trade unionists, authorised sterilisation of those with hereditary defects?
Postscript: the encounter which followed the speech. The following is from Crikey.com.au:
3. Vanstone’s former COS confirms illegal solitary confinement
On Friday night the NSW Council for Civil Liberties awarded Sydney solicitor John Marsden honorary life membership. Julian Burnside was invited to make the speech in Marsden’s honour. In the course of his speech, Burnside referred to the unregulated use of solitary confinement in Australia’s immigration detention centres, criticising it as inhumane and also as unlawful.
The speech went down well, but one person took him on afterwards, while guests got on with their dinner. Andrew Kirk, currently senior advisor to Joe Hockey, but until recently chief of staff in Amanda Vanstone’s Immigration Department, told Burnside that he was wrong.
A fairly lively debate between the two followed, in which Kirk conceded that solitary confinement is used as punishment in detention centres, that punishment without the order of a court breaches the constitutional separation of powers; that use of solitary confinement as punishment is unlawful, but that they would keep on doing it until a court told them to stop.
Later in the evening, Burnside had to get up and present the award to Marsden. He took the opportunity to tell the 350 guests, point by point, what Kirk had said. He then invited Kirk to contradict him if Kirk disagreed with the summary of their conversation. Kirk said nothing.
We have known for years that solitary confinement is used in detention centres. The government has always been cagey about it, preferring to call it ‘separation detention’. Now we have a clear, public admission of systematic conduct by the department which not only breaches international conventions, but which the department knows is illegal.
Appendix: Gonzales Memo to President Bush
January 25, 2002
MEMORANDUM FOR THE PRESIDENT
FROM: ALBERTO R. GONZALES
SUBJECT: DECISION RE APPLICATION OF THE GENEVA CONVENTION ON PRISONERS OF WAR TO THE CONFLICT WITH AL QAEDA AND THE TALIBAN
On January 18, I advised you that the Department of Justice had issued a formal legal opinion concluding that the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply to the conflict with al Qaeda. I also advised you that DOJ’s opinion concludes that there are reasonable grounds for you to conclude that GPW does not apply with respect to the conflict with the Taliban. I understand that you decided that GPW dos not apply and, accordingly, that al Qaeda and Taliban detainees are not prisoners of war under the GPW.
The Secretary of State has requested that you reconsider that decision. Specifically, he has asked that you conclude the GPW does apply to both al Qaeda and the Taliban. I understand, however, that he would agree that al Qaeda and Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearing before a military board.
This memorandum outlines the ramifications of your decision and the Secretary’s request for reconsideration.
As an initial matter, I note that you have the constitutional authority to make the determination you made on January 18 that the GPW does not apply to al Qaeda and the Taliban. (Of course, you could nevertheless, as a matter of policy, decide to apply the principles of GPW to the conflict with al Qaeda and the Taliban.) The Office of Legal Counsel of the Department of Justice has opined that, as a matter of international and domestic law, GPW does not apply to the conflict with al Qaeda. OLC has further opined that you have the authority to determine that GPW does not apply to the Taliban. As I discussed with you, the grounds for such a determination may include:
A determination that Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations (e.g., was in widespread material breach of its international obligations).
A determination that the Taliban and its forces were, in fact, not a government, but a militant, terrorist-like group.
OLC’s interpretation of this legal issue is definitive. The Attorney General is charged by statute with interpreting the law for the Executive Branch. This interpretive authority extends to both domestic and international law. He has, in turn, delegated this role to the OLC. Nevertheless, you should be aware that the Legal Adviser to the Secretary of State has expressed a different view.
Ramifications of Determination that GPW Does Not Apply
The consequences of a decision to adhere to what I understood to be your earlier determination that the GPW does not apply to the Taliban include the following:
As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.
Although some of these provisions do not apply to detainees who are not POWs, a determination that GPW does not apply to al Qaeda and the Taliban eliminates any argument regarding the need for case-by-case determinations of POW status. It also holds open options for the future conflicts in which it may be more difficult to determine whether an enemy force as a whole meets the standard for POW status.
By concluding that GPW does not apply to al Qaeda and the Taliban eliminates any argument regarding the need for case-by-case determinations of POW status. It also holds open options for the future conflicts in which it may be more difficult to determine whether an enemy force as a whole meets the standard for POW status.
Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
That statute, enacted in 1996, prohibits the commission of a “war crime” by or against a U.S. person, including U.S. officials. “War crime” for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as “outrages against personal dignity”). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actins taken with respect to the Taliban.
Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons.
· First, some of the language of GPW is undefined (it prohibits, for example, “outrages upon personal dignity” and “inhuman treatment”), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.
· Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.
· Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.
On the other hand, the following arguments would support reconsideration and reversal of your decision that the GPW does not apply to either al Qaeda or the Taliban:
Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to either U.S. or opposing forces engaged in armed conflict, despite several opportunities to do so. During the last Bush Administration, the United States stated that it “has a policy of applying the Geneva Conventions of 1949 whenever armed hostilities occur with regular foreign armed forces, even if arguments could be made that the threshold standards for the applicability of the Conventions … are not met.”
The United States could not invoke the GPW if enemy forces threatened to mistreat or mistreated U.S. or coalition forces captured during operations in Afghanistan, or if they denied Red Cross access or other POW privileges.
The War Crimes Act could not be used against the enemy, although other criminal statutes and the customary law of war would still be available.
Our position would likely provoke widespread condemnation among our allies and in some domestic quarters, even if we make clear that we will comply with the core humanitarian principles of the treaty as a matter of policy.
Concluding that the Geneva Convention does not apply may encourage other countries to look for technical “loopholes” in future conflicts to conclude that they are not bound by GPW either
Other countries may be less inclined to turn over terrorists or provide legal assistance to us if we do not recognize a legal obligation to comply with the GPW.
A determination that GPW does not apply to al Qaeda and the Taliban could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in status of adversaries.
Response to Arguments for Applying GPW to the al Queda and the Taliban
On balance, I believe that the arguments for reconsideration and reversal are unpersuasive.
The argument that the U.S. has never determined that GPW did not apply is incorrect. In at least one case (Panama in 1989) the U.S. determined that GPW did not apply even though it determined for policy reasons to adhere to the convention. More importantly, as noted above, this is a new type of warfare – one not contemplated in 1949 when the GPW was framed – and requires a new approach in our actins towards captured terrorists. Indeed, as the statement quoted from the administration of President George Bush makes clear, the U.S. will apply GPW “whenever hostilities occur with regular foreign armed forces.” By its terms, therefore, the policy does not apply to a conflict with terrorists, or with irregular forces, like the Taliban, who are armed militants that oppressed and terrorized the people of Afghanistan.
In response to the argument that we should decide to apply GPW to the Taliban in order to encourage other countries to treat captured U.S. military personnel in accordance with the GPW, it should be noted that your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers. Moreover, even if GPW is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel. Finally, I note that our adversaries in several recent conflicts have not been deterred by GPW rules in any event.
The statement that other nations would criticize the U.S. because we have determined that GPW does not apply is undoubtably true. It is even possible that some nations would point to that determination as a basis for failing to cooperate with us on specific matters in the war against terrorism. On the other hand, some international and domestic criticism is already likely to flow from your previous decision not to treat the detainees as POWs. And we can facilitate cooperation with other nations by reassuring them that we fully support GPW where it is applicable and by acknowledging that in this conflict the U.S. continues to respect other recognized standards.
In the treatment of detainees, the U.S. will continue to be constrained by (i)its commitment to treat the detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of GPW, (ii)its applicable treaty obligations, (iii) minimum standards of treatment universally recognized by the nations of the world and (iv) applicable military regulations regarding the treatment of detainees.
Similarly, the argument based on military culture fails to recognize that our military remain bound to apply the principles of GPW because that is what you have directed them to do.