Would military tribunals breach the Geneva Conventions guaranteeing fair treatment of prisoners of war?
A December 26, 2001 New York Times article by William Glaberson examined a new controversy concerning President Bush's order authorizing military tribunals: Would military tribunals breach the Geneva Conventions guaranteeing fair treatment of prisoners of war? In the article, found at http://www.nytimes.com/2001/12/26/national/26LAW.html, administration critics contend that the military tribunals order conflicts with guarantees in international law protecting POWs right to choose their own attorneys, to be tried in courts that are independent of prosecution, and to appeal convictions.

The following Letters to the Editor, submitted to the New York Times by former State Department Legal Advisor Edwin Williamson and Baker & Hostetler attorneys David Rivkin and Darin Bartram, present a different point of view than that offered by critics in the Times article.


"Critics' Attack on Tribunals Turns to Law Among Nations" (p. B1, 12-26-01) contains premature conclusions as to what President Bush has done in issuing his military order authorizing the establishment of military commissions for the trial of terrorists, as well as flat out incorrect interpretations of the military order. They combine to create the false impression that President Bush has violated basic principles of domestic and international law and has exposed our military to unfair treatment by other nations.

The premature conclusions include the assertions that persons brought before a military commission will not have a right to choose their own lawyers, to be tried in a court that is independent of the prosecution or to appeal convictions. We simply do not know at this point. What the President has issued is a skeletal structure; what the Secretary of Defense will do, through the promulgation of rules, is to add flesh to those bones. While it is healthy for all to offer advice as to what those rules should include, it is too early to judge the President's actions. It is reasonable to assume at this point that the Secretary of Defense will look for guidance in the body of rules that his department knows best -- the Uniform Code of Military Justice, which resolves those issues in favor of the defendant.

The order's prohibition on appeals does not rule out the possibility that a commission could contain an appeals chamber. What the President was attempting to do with the ban on appeals was to prohibit seeking relief in, for example, a domestic civilian court. The President could not, and I do not believe he was attempting to, deprive a person of a constitutionally guaranteed right, such as the assertion of a denial of habeas corpus.

The flat out incorrect interpretations include, in addition to the claim that appeals are barred, the assertion that the President's reservation of the right to review a decision deprives a military commission of its independence or impartiality. I know of no one who has assumed that the President's reservation was done for the purpose of giving him a chance to second guess a military commission and find guilt where the commission did not or impose a harsher punishment. Equally laughable is the assertion that the President is somehow "legitimizing certain types of terrorism".

The President's military order does not expose our military personnel (which include himself, as the commander-in-chief) to misapplication of the laws of war to any greater extent than does our use of force in the first place. That is why, for example, an unaccountable international criminal court is a real threat to our military personnel. Our leadership role places us in an unfortunate position of having our military's actions second guessed more so than others.

There is little we can do to stop the Syrias, Libyas, Irans and Cubas from establishing military commissions. What distinguishes the President's action is that he has decreed that the rules of our military commissions must provide for full and fair trials and that we, unlike those (and most) other countries, have a tradition of respecting the rule of law. I believe we will be able to defend trials by military commissions. No doubt some commissions will make mistakes, but so do juries and our judiciary (including appeals courts).

Sincerely yours,

Edwin D. Williamson
Washington, DC
December 27, 2001
The writer is a partner in the Washington, DC office of Sullivan & Cromwell and served as the Legal Adviser to the State Department during the Presidency of George H.W. Bush.


Your December 26 article, "Critics' Attack on Tribunals Turns to Law Among Nations," recites criticisms of President Bush's military tribunals, and looks to narrow the circumstances in which they can be utilized.

The legality of these tribunals for "unlawful combatants"-that is, belligerents who, for one reason or another (e.g., failure to wear a uniform or carry arms openly) are not privileged to engage in combat, and can be treated harshly upon capture-has been well established in this country. The Supreme Court, in (1942), upheld the use of the military commission to try unlawful combatants.

Some commentators have suggested that Quirin is outdated, in light of the 1949 Geneva Conventions and the 1977 Protocol I to those Conventions (the latter of which the U.S. has not ratified, but nonetheless adheres to, to the extent that some of its provisions have become a part of customary international law). While these agreements did much to protect prisoners of war from mistreatment and civilians from unnecessary suffering, they also clearly maintained the distinction between lawful and unlawful combatants. The commentary prepared by the International Committee of the Red Cross, which is the most authoritative exposition of the Geneva Conventions and their progeny, notes that "anyone who takes up arms without being able to claim this status [of a "lawful combatant"] will be left to be dealt with by the enemy and its military tribunals in the event that he is captured."

Likewise, there is nothing in the International Covenant on Civil and Political Rights that prohibits the use of military tribunals. The U.N. Human Rights Committee comments on this Covenant acknowledges the legality of military tribunals: "While the Covenant does not prohibit such categories of courts [e.g., military tribunals], nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14 [e.g., presumption of innocence, right to appeal, etc.]." It is a fair assumption that unlawful combatants, not having the status of civilians, would be entitled to a lower level of procedural guarantees. Unlike POWs, they can
also be interrogated.

The use of military tribunals is not only legal under American and international law, but also has strong policy merits. Any approach which erodes the distinction between lawful and unlawful combatants is certain to undermine the entire set of legal norms governing combat, which mankind, with great pain and difficulty, has developed over hundreds of years. This would be particularly ill-advisable, since, at the dawn of the 21st Century,
we are facing a grave threat posed by unlawful combatants, who reject compliance with all legal norms, who seek access to weapons of mass destruction, and who have publicly proclaimed their intent to use them against the United States. Eradication of unlawful combatants, using military commissions and all of the other legal and military tools at our
disposal should be an utmost priority for all law-abiding states.

David B. Rivkin, Jr.
Darin R. Bartram
Washington, D.C.
(202) 861-1500

The writers are partners at the Baker & Hostetler LLP law firm, and have written extensively on matters of international law and military commissions.



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