Tuesday, December 05, 2006

Deans, Delahunty, and Detainees

There is a controversy concerning a University of St. Thomas Law School professor doing a favor for the University of Minnesota Law School and teaching a single semester of constitutional law. The professor is Robert Delahunty. The controversy involves a memo that he drafted for the Bush Administration about the legal status of Al-Qaida and Taliban detainees in Afghanistan.

Here is an op/ed piece that I co-wrote with Kim Crockett last year. It appeared in the Minneapolis Star Tribune.

Kimberly Crockett and Peter A. Swanson
November 16, 2005

Nick Coleman's Nov. 4 column ("Should we shun or debate torture memo lawyers?") suggests that readers should attend today's Federalist Society debates featuring former Deputy Assistant Attorney General John Yoo. We agree. We would also suggest that people read the 2002 memorandum drafted by Yoo and St. Thomas Law School Prof. Robert Delahunty, as most commentators on this issue apparently have not.

The memorandum at issue does not authorize or condone torture. Instead, Yoo and Delahunty's memorandum presents exhaustive research on the legal status of Al-Qaida and Taliban detainees from Afghanistan. They conclude that the War Crimes Act (WCA), which incorporates several provisions of the Geneva Conventions and other international treaties into the federal criminal code, do not apply to Al-Qaida or the Taliban.

The memorandum provides many reasons why the protections of the WCA and Geneva Conventions do not apply to Al-Qaida fighters. For example, they do not represent a nation state; they refuse to wear uniforms or distinctive insignia; and they do not observe the Geneva Conventions themselves in conducting their missions. The Taliban presents a much closer case, but Yoo and Delahunty's memorandum presents the legal reasoning for why Taliban militia fighters are not entitled to the protections of the WCA or Geneva. The memorandum also mentions several times that the president may decide, as a matter of policy, to apply Geneva and other standards of conduct to the treatment of detainees.

Concluding that the Geneva Conventions do not apply to particular detainees does not mean that torture is either condoned or authorized. For example, drug traffickers from other countries who are intercepted by the U.S. Coast Guard are not covered by the Geneva Conventions, but we still treat them humanely.

There was a genuine and serious debate within the administration about the application of the international law to the war on terror. The president properly sought legal advice both to determine administration policy and to understand the legal risks and exposure for our armed forces. Former Secretary of State Colin Powell argued that the Geneva Conventions should apply to the conflict, even if some individual fighters are deemed to be "unlawful combatants." Throughout the internal debate, no administration lawyer or official argued in favor of torture. On Feb. 7, 2002, President Bush determined as a matter of policy that Geneva applied to the conflict with Taliban fighters in Afghanistan, but not to Al-Qaida. Taliban fighters are deemed unlawful combatants rather than prisoners of war.

There are important consequences of a prisoner of war designation that have nothing to do with the humane treatment that all detainees receive. For example, the Geneva Prisoner of War Convention provides legal immunity for precapture warlike acts. This means that there could be no future prosecution of terrorists who are deemed to be prisoners of war. Moreover, by affording such legal protections to belligerents who target innocent civilians and engage in combat wearing civilian clothes, we would be removing the incentive for others to conduct their operations according to the laws and customs of warfare.

The Amnesty International report cited by Coleman lists Yoo and Delahunty among various lawyers who wrote legal opinions that "may have provided cover for subsequent crimes" (emphasis supplied). This suggests that even Amnesty, with its inflammatory and irresponsible rhetoric, is not sure that Yoo and Delahunty did anything wrong in writing their memorandum. In fact, not one of the administration's several legal memoranda on this topic advocated the use of torture.

The allegation that Yoo and Delahunty "provided cover" for war crimes is absurd. It is difficult to imagine that the guards who were accused of prisoner abuse in Iraq were inspired by these lengthy and obscure legal memoranda (concerning Afghanistan) to form human pyramids with detainees. Instead of being condoned, these incidents were investigated by the military and resulted in court-martial convictions.

The flaws in Nick Coleman's tortured logic are apparent to anyone who has read the actual memos or given thoughtful consideration to the difficulty of fighting terrorists. But he is right in one respect. People should attend today's debates at the law schools of the University of St. Thomas (12:30 p.m.) and the University of Minnesota (7 p.m.).

Kimberly Crockett is a Deephaven attorney and president of the Minnesota Lawyers Chapter of the Federalist Society. Peter A. Swanson is a Golden Valley attorney and a former judge advocate in the U.S. Army.


Anonymous Anonymous said...

oh, i get it

"Concluding that the Geneva Conventions do not apply to particular detainees does not mean that torture is either condoned or authorized."

who cares!
except, this is simply against a lawyer's ethics to suggest a way around established law. does the law mean nothing? is it merely something we must get around in order to get more power?

December 05, 2006 9:54 PM  
Blogger Peter said...

This comment needs some explanation. See the newer post above.

December 06, 2006 7:30 AM  

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