Shades of Gray: Military Commissions and the Rule of Law

June 20, 2007

CREDIT: jeshua.nace (CC)

Introduction

JOANNE MYERS: We are very delighted to have as our guests General John Altenburg and Colonel Jeff McCausland. They will be discussing military commissions.

Earlier this month, U.S. military judges dismissed war-crime charges against two detainees at Guantánamo. Their decisions did not turn on the guilt or innocence of the detainees, but rather on procedural issues. The judges ruled that the Military Commissions Act of 2006 lacked jurisdiction because the law limits cases to those who are deemed unlawful military combatants.

Since this tribunal had determined that both of these men were enemy combatants, not unlawful enemy combatants, the threshold issue which is required for the military commissions to hear the case in the first instance had not been met.

Although the Defense Department is appealing the ruling, this recent decision has reignited the debate over how to try those accused of terrorism. Many have argued that the current system denies proper rights to detainees and has yet to bring a single case to trial. Still others point out the negative ways in which this system projects America and its values to the world.

At the crux of this matter is the issue of whether the president, in fighting this war against terror, can invoke military powers that supersede traditional legal protections.

In order to explore this subject further, we are fortunate to have with us the individual who served as the appointing authority of military commissions, General John Altenburg. While serving in this capacity, General Altenburg's duties included overseeing the military tribunals of the terrorism suspects held at Guantánamo. His experience and insights are invaluable.

Interviewing General Altenburg is the very able and skilled Jeff McCausland, who is a senior fellow here at the Carnegie Council. He leads our initiative on Ethics, War and Peace.

Colonel McCausland is a graduate of the U.S. Military Academy at West Point and has served in a variety of command and staff positions, both in the U.S. and Europe, including Director of Defense Policy and Arms Control on the National Security Council staff during the Kosovo crisis. In addition, he commanded a field artillery battalion which was stationed in Europe and was later deployed to Saudi Arabia for Operations Desert Shield and Desert Storm in 1990 and 1991.

Most recently, over Memorial Day weekend, Jeff was in Baghdad to deliver a series of radio interviews for CBS which focused on the air medical evacuation of the wounded from Iraq back to the USA.

Please join me in giving a very warm welcome to our very distinguished guests, General Altenburg and Colonel McCausland.

Discussion

COLONEL JEFF MCCAUSLAND: Thank you very much, ladies and gentlemen, and welcome this afternoon to what I think will be a very interesting discussion here at Carnegie.

I would like to take one extra moment to embellish a bit on Joanne's introduction before I turn to General Altenburg.

Before I do that, however, let me explain how this is going to proceed. For the first 15 or 20 minutes, I have a series of questions, to kind of get the conversation going, that I will ask General Altenburg. Then after that, I will turn it over to the audience for you to ask your questions. I would only ask that when you do that, you please identify who you are and your affiliation.

General Altenburg has graciously agreed to have the discussion on the record. If at any point in the discussion, however, based on what we are talking about, he determines that we want to go off the record, he will indicate so. I would ask you, obviously, to honor that decision on his part. He wants to be as open as possible, but at the same time, have that bit of discretion. That's only fair, I think, because we are talking about legal issues that can have ramifications in the course of ongoing efforts at Guantánamo and elsewhere.

I think it's important to add a couple of notes about our guest. John Altenburg is a very dear friend of mine as well. He spent about 28 years in the United States Army as a military lawyer and, in doing so, advised military commanders in operations, beginning with Vietnam, advising commanders in special operations command. He and I served in Desert Storm together, where he was the senior military adviser to the commander of the 1st Army Division. He subsequently provided military legal advice to the commanders in Operation Restore Hope in Somalia, as well as subsequently in Haiti, in Bosnia, and in Kosovo. For several years, he was the Deputy Judge Advocate General of the Army, which means he was the number-two attorney for all SGA staff in the entire United States Army.

So a very, very distinguished military record, a very, very distinguished legal record, and, I will have to add, an officer and a guy that I admire greatly. So it's a real honor and pleasure for me to do this.

Let's begin, John, and kind of think back a little bit. You and I have talked a lot about this. Military commissions are really not new. This is something that we have seen throughout history in warfare here in the United States and elsewhere.

Can you place your work and, really, the efforts by the United States government since 2001 in this effort of dealing with terrorists, or alleged terrorists, and military commissions in the broader historical context of previous wars and international law?

GENERAL JOHN ALTENBURG:
What we now call military commissions were called by other names years ago. In 1781 was the first of what we would call a military commission, during the Revolutionary War. The United States military has conducted military commissions in every war since the Revolutionary War, with the exception of Vietnam and Korea. But we tried lots of military commissions in all these different efforts.

The Uniform Code of Military Justice and the Articles of War, which preceded the Uniform Code of Military Justice, which was our disciplinary code from 1775 until 1950, talk about tribunals. I would like to do a little one-on-one on tribunals first.

There are various tribunals that are included in the military code. "Tribunal" is the overarching term. Within the term "tribunal" are courts-martial, which people are most familiar with. That's how you prosecute soldiers for committing crimes. But there are also things called courts of inquiry that the Navy uses extensively—most recently in Hawaii, when the submarine surfaced and brought down the cruise ship from Japan—provost courts, and military commissions. They are all tribunals, and the word "tribunal" can be used in a confusing way sometimes.

So it's important to understand that that is the overarching term, and commissions are just one of the types of tribunals.

The reason I mention that is because the Geneva Conventions also provide for a type of tribunal that everybody talks about in terms of the people that have been captured in Afghanistan: Why didn't we conduct Article 5 tribunals, which are to be conducted when you have doubt as to the status of someone that you capture on a battlefield? Are they a prisoner of war? Are they some other type of detainee?

So that word "tribunal" got cranked in there. Then, in the wake of the Supreme Court decision in Rasul in 2004, Sandra Day O'Connor's opinion essentially says, "You guys really should have done some kind of tribunal here." She is alluding to Article 5 tribunals, without actually saying an Article 5 tribunal, Article 5, Geneva III.

So the government, in its infinite wisdom, decided to do these tribunals at Guantánamo. They didn't want to call them Article 5 tribunals, I think because they just didn't like the idea of calling them Article 5 tribunals. That's why we didn't do them in the first place, when we should have. So they were still stuck on, "We're not going to call them Article 5 tribunals," and they called them combat status review tribunals.

So we have tribunals all over the place, and it's very confusing.

Anyway, we have done commissions ever since we began, essentially. We tried over 800 of them in the wake of World War II. We tried them in the Pacific and we tried them in the European theater, almost all after the war was over—not to be confused with the international ad hoc tribunals at Nuremburg and Tokyo, which were completely different, not military commissions. We did try General Yamashita in Manila at a military commission, not at an international ad hoc tribunal, and we prosecuted numerous lower-ranking people in the German government at military commissions throughout Europe, in addition to the 24 senior Nazis that were tried at Nuremburg.

So the government, in 2001, landed on the idea of, "Let's do commissions. We haven't done them since 1942, but that looks like a good way to do it." Now, what led to that decision was, of all the different ways to consider prosecuting these people—you could try them in courts-martial, in theory. You could try them in Article 3 courts, our standard criminal courts in the federal government. You could create an international ad hoc tribunal. Some people argued that we should create a new venue: Let's have some type of antiterrorism court, the same way, 30 or 40 years ago, we created the FISA [Foreign Intelligence Surveillance Act] courts to handle certain types of intelligence warrants and so forth.

All of those ways are legitimate; all of those ways are okay. But in the late 1980s, some people in the Department of Justice looking at terrorism issues started to look at and research the prospect of prosecuting people that commit terrorist acts as war crimes and trying them at military commissions. We didn't know that, in the public, that they were looking at that, but they were thinking about that. They even talked about it in 1993, World Trade Center 1. They didn't do it then. But that was alive in the Department of Justice as a possible way to prosecute these types of crimes.

The British government, of course, doesn't do that at all. They have had this IRA [Irish Republican Army] problem for as many years as they have had it, and they treat it as domestic criminal offenses. They prosecute it in their domestic courts.

Neither one is better. Neither one is more legal. Either one works. You can choose the paradigm you want. You can try them as criminals in the domestic criminal court or, if their offenses qualify as war crimes and there is a war, you can prosecute them as war crimes at a military commission.

This government chose to go after them with military commissions and created the Presidential Military Order of 2001—in my view, a notoriously poorly written document. But we can talk about that later.

COLONEL JEFF MCCAUSLAND: Picking up on that, John, you made the suggestion that there were international legal norms under Article 5 of the Geneva Convention. For whatever reason, good or bad, we chose not to exercise that particular option in dealing with the people that we encountered on the battlefield in Afghanistan.

Now, in retrospect, having been through this for 32 months as a special convening authority, do we need to perhaps inaugurate a whole new round of international discussions, to look at the Geneva Conventions, in light of the fact that we are dealing clearly with a threat posed by non-state actors, those who will not be in uniform, those who will not legitimately represent any particular country? Do we need to create that type of forum to derive new guidelines for dealing with this problem in the future?

GENERAL JOHN ALTENBURG: BLUF, as we say in the army—bottom line up front—no. We don't need new laws. We need to comport and comply with the laws that are on the books already. That is my personal view. There is a lot of disagreement with that. I don't pretend that I'm even in the majority in that regard.

We don't have to desire to meet and try to change the laws, because people are already talking about it. There are various international agencies. There are people in Geneva and the ICRC [International Committee of the Red Cross] talking about perhaps having meetings. They were doing this even before 9/11.

We had the First Geneva Convention in the 1860s. That was on the sick and wounded. Then we got the sick and wounded at sea right after the turn of the century. After World War I, in 1929, they came up with Geneva III, which is PWs [prisoners of war]. They were talking in the 1930s about a fourth convention for civilians, but they didn't get around to it because of what was going on in Europe. They couldn't get anybody to agree to go to Geneva, I guess, given what was happening in Germany. So it was after World War II and the incredible refugee movements when they said, "Well, we have to have Geneva IV." That's what Geneva 1949 was all about. In addition to tweaking the previous three, they added Geneva IV.

So now some people talk about creating some other Geneva Convention to govern non-state actors. I just don't think it's necessary. There is a study that is going to occur at Syracuse University later this summer, in conjunction with some international law experts in Israel, that I have been invited to, as a matter of fact, and I am going to participate in. But I must admit that my going-in position is that we don't need to change it. A lot of the people that are part of this do. So I feel like maybe they need to hear the other side of that. Too often, you want to change everything when you are not really paying attention to what you have already.

So that's my view of that.

COLONEL JEFF MCCAUSLAND: Let's look ahead for a minute. All of our efforts dealing with detainees, picking them up on the battlefield, the transferring of them around the world, the military commissions, the combat status reviews—all that, you could say, has now been summarized by one word, and that word would probably be "Guantánamo." We both know that right now there are something less than 400 detainees at Guantánamo. Of those roughly 400 detainees today at Guantánamo, somewhere between 50 and 100 might actually appear in front of a military commission for alleged war criminal acts or acts against the law of war.

At the same time, we have had people such as Secretary of State Colin Powell, in the last week, saying if it was up to him, he would close Guantánamo this afternoon—not tomorrow, this afternoon.

From your experience, where do you see this going in future, with Guantánamo and with this process? Obviously, we certainly have to deal with those 400 we have right now, and there is every likelihood that we will encounter more as we continue military operations in Afghanistan and elsewhere.

GENERAL JOHN ALTENBURG: I think that there will be a political solution, and just before the election they will probably close it somehow. But I don't know what they will do with them, quite frankly. That scares me as a citizen, that they would close it for those reasons. But lots of things happen in the political process that I don't like, and I know that they happen just because of the political process, not because it is what's best, even, for the country.

The irony is that Guantánamo today is a model penal installation. Those detainees get incredible treatment, and resources that are dedicated to them are just off the charts in terms of what's right. It's not a country club by any stretch of the imagination, but—I won't go into detail unless you ask questions about it—they are really in a model penal situation.

The problem is the name "Guantánamo" and what it has come to mean. But in terms of the quality of the staff and everything about that place—and the buildings that they built—when they got there it was pretty rough. They were at Camp X-Ray, and that was a place that had been thrown up on the fly for Haitian refugees and Cuban refugees. They put them in there. But what they have built since then is—the latest two buildings are modeled on United States federal prisons. They are incredible facilities. The medical care, the food, the attention that is paid to their religion, the deference that is given for all these things—they are really well cared for.

So that's the irony, that it's a model place, but in the world, the name "Gitmo" or "Guantánamo" just connotes too many negative feelings.

The other thing is, I don't know where you are going to put these people. It's clear that they put them there because they thought that they would be away from habeas completely. The Rasul case fixed that. The Congress has now acted and taken away habeas. They are still arguing about that. Senator Lott says, "We have to get this fixed."

But the fact is, if you were to move them to the United States now, even to the maximum prison in Colorado or Leavenworth, Kansas, they would pick up all kinds of rights they don't have right now. They would have a lot more access to the courts.

Bear in mind that there are some 380 people down there, of whom I think for about 50 to 100 there is evidence that may justify prosecutions. That does not mean that the other 300 are good guys and they never did anything wrong. It means for those 100, there is evidence of war crimes. There are still other people that were picked up on a battlefield trying to kill our people, and some of them are pretty nasty people.

I have to say also that we know of 12 who have been released over time. There were as many as 700 there. There are 12 who were back on the battlefield or planning or operating against our forces in Afghanistan and in other places. For some of them we know that because we killed them the second time and they are dead. We were able to identify them as people who had been at Guantánamo and sweet-talked their way through the process and went back. At least a couple of others were actually in the hierarchy of al Qaeda and part of the brain trust.

I was telling Joel [Rosenthal] upstairs a little while ago, there are people at Guantánamo who to this day have never uttered a word. They have never said anything. I think the intelligence people think that those are pretty serious cats, if they are able to withstand that kind of environment and being alone like that, and still not talk to anybody, in any language that they have been able to hear.

It's kind of scary when you think about what these people are.

COLONEL JEFF MCCAUSLAND: I had the opportunity when I worked for CBS News to visit Guantánamo. One of the records I always found interesting was that the prisoner at Guantánamo, on average, has gained seven and a half pounds since he was incarcerated.

By the way, there are no women at Guantánamo. It's all male. Many of them received medical and dental care for the first time in their entire lives. They have never had that.

There are five prisons at Guantánamo. Over time we have constructed that, based on different levels of prisoner designation. One prison is typically for a small group who are certified psychopaths. There is a certain percentage of those 300 who may not be convicted of war crimes, but are certified by doctors as psychopaths. Obviously, they are going to have to be maintained in some kind of confined facility for an awful long time.

Now we will turn it over to the audience. I would ask you to keep your questions relatively brief, because we have a large number of people and I'm sure there will be a number of questions. Again, our discussion will be on the record, unless General Altenburg determines that the question is moving us to a place where he would rather go off the record.

Who has the first question? Yes, sir.

Questions and Answers

QUESTION: Since you said that the quality of life for the detainees has improved significantly, how many have "turncoated" to our favor, if any?

COLONEL JEFF MCCAUSLAND:
In my dealings down at Guantánamo, I couldn't give you an exact number, but I know there have been several. I happen to also know—there is a question of why you keep these people if they are no longer—there are two criteria: Is this person a threat to the United States? Does this person potentially maintain any intelligence information? Those are the two criteria on the review.

I do know for a fact that one prisoner, in particular, provided information which ended up resulting in the rolling-up of a major al Qaeda cell through Germany and Italy. It stretched from Hamburg down to Munich and all the places in between, in terms of money laundering and the movement of money to al Qaeda operatives.

I do know that after the London bombings a year or so ago in July—the British government also knows, as our closest ally, who is kept at Guantánamo—they contacted our folks there and said, "We'd like you to ask the following six or eight guys the following six or eight questions," about their connections to various people in the London area.

I can't tell you specifically how many have done that, but a number have. It's really amazing, the intelligence value that is gained, not so much in particular tactical things, where a certain thing is happening, but in how al Qaeda operates, how it moves money, how it recruits people, those kinds of things. They still find great value.

John, do you want to add to that?

GENERAL JOHN ALTENBURG: I don't know numbers either. I know that they are able to move up through different statuses, the same way that prisoners would in our own prison system, where people become trustees and they get more responsibility and less supervision. The first thing they do with the people at Guantánamo, once they indicate a certain willingness to cooperate, is to give them white clothes instead of orange clothes. So there is a whole camp that is all in white garb. They have more access to the outside, more opportunity to talk to each other.

I am assuming that most of those people are actually cooperating in the intelligence interviews. I don't think we have brought any over to our side and put them back out as agents or anything. They are all still there, and they are still just using them for interviews.

QUESTION:
I used to be in the U.S. Foreign Service for many years, General. Could you clarify, if these individuals, or a number of them, are moved to United States territory, what options there are? In other words, would these be military commissions in one of the 50 states of the United States? Or would it be another kind of court?

Secondly, could you clarify what rights these individuals would have on the territory of the United States that they do not have in Guantánamo? In your remarks, you said that they would obtain a number of additional rights. What are those? How significant would they be?

GENERAL JOHN ALTENBURG: As I said, there are four, five, six different venues where they could be tried, once we bring them even to Guantánamo. I mentioned them before: Article 3 courts, creating a new court, international ad hoc tribunals, courts-martial, military commissions. Any of them could probably be tried by—you could tweak some facts on me and say, "I'm going to give you a guy, and this is what the situation is," and I'd say, okay, maybe we wouldn't try him this way. But for the most part, there are about five or six venues where they could be tried.

I haven't thought much about what would happen if they came back to the States, maybe because, subliminally, I'm thinking I don't ever want them to come to the States. So I'm really kind of stuck on that and telling you that the major right that they would have that I think the government is most concerned about is the right to habeas, if they were in the States.

QUESTIONER:
Could you just sort of amplify what that means?

GENERAL JOHN ALTENBURG: The habeas corpus writ means that you force the government to show why someone is in prison. That's what the government said they couldn't do if they were at Guantánamo, because it's not United States territory; it's sovereign Cuba land, even though we have been there since the 1930s and we lease the land in perpetuity. The court, surprisingly to some, worked their way around that and said that, for these purposes—they didn't go beyond that, but they left open, I think, the specter of—if we put these guys back in prison in Afghanistan, would the Supreme Court say, "We're going to reach back over there and they can have habeas there, too"? I don't know. That hasn't been addressed yet, but it hasn't been closed off by the court either.

The Congress, in reaction to all that, basically took the habeas corpus right away.

When you are in the States, you have it automatically. There is the constitutional, if you will, habeas corpus right and there is the statutory habeas corpus right, which was created by Congress in the 19th century. That was the basis for their, in the wake of Rasul, having access to the courts.

Congress took it away from them and basically said, "This is not what we intended." When we created statutory habeas corpus for various types of folks, we did not intend that when American soldiers, engaged in combat, capture people on the battlefield and imprison them and detain them—we did not intend for that group of people to have access to the courts. We don't want to be reviewing what the military does with detainees on the battlefield. We didn't want to go that far with it.

What that does is, it leads to the—people would ask the question, how far do you want the courts to intrude on that? Do you want them to wait until they get into Guantánamo? Do you want them out there right behind the battalion or right behind the brigade? Where do you want them making a judgment and second-guessing what the military is doing when they capture people on the battlefield?

That's why I think the government chose the law-of-war construct instead of domestic criminal law. The law of war is, in many ways, vague—in many ways, not so, but in many ways vague—and allows for a lot of maneuver room. So you capture somebody on the battlefield. You don't execute them; you capture them. You treat them with dignity and respect. (That's another whole discussion.) In return, you don't have to give them up. You keep them until the war is over.

That fact, and the fact that that makes it so different, is one of the reasons that I am so critical of this administration in terms of public education. They have allowed the debate to be, when do these guys get their lawyer? When do they get to go to court? When do you charge them? This is not right. We have speedy trial rules. If they were citizens in the States, they would have all these rights. This just seems so wrong.

That's the debate. The debate should be, in my opinion, when a war looks kind of like it may never end, how long do you get to detain these guys? Do you keep them forever, really? These are non-state actors. When they wrote the laws of war those four times, they never really contemplated non-state actors. This was nation to nation, and everybody had to sign up for it.

It reminds me of—several years ago, a young woman in the Air Force was accused of disobeying orders. Her lawyer got hold of the press and managed to try the case in the press and characterized it as, "This is a young woman in love at Minot Air Force Base in North Dakota, for crying out loud. She fell in love with another man. This is unfortunate. It's too bad that she was married to another airman, and her husband didn't like it. It created a little problem in the post with fraternization, officer and enlisted soldier, that type of thing. But come on, the Air Force is getting into her private life, her love life, and this isn't right."

That was the debate. One of our senators even said, "Get real, Air Force. This is wrong. You shouldn't be persecuting this poor young woman who is in love with some other man. We don't do that."

So they ended up getting a good resolution of that case for her. Only after the case was resolved, with her being administratively separated from the service and no court-martial, did the chief of staff of the Air Force come forward and say, "Wait a minute. This case is not about a young woman in love. This is about an Air Force Academy graduate who is qualified to fly and pilot and command a B-52 bomber and carry nuclear weapons around the world and drop them at the direction of the commander-in-chief of the United States armed forces in the defense of this nation. It's about that same officer disobeying orders and disrespecting superiors. We cannot have an officer with that authority and that responsibility disobeying the orders of superior officers. That's what this case is about, not about a woman in love."

In the same way, nobody in this government ever said, "Wait a minute. In 1944, we had 400,000 German and Italian detainees in the United States, in United States prison camps, and not one of them was saying, 'When do I get my trial? When do I get my lawyer?'" Lots of them were cooks and drivers, and lots of them never picked up a weapon. Most of them had been conscripted by their country. They weren't necessarily willing—"I'm going to go get the Americans."

That's what the law of war is. If you capture them on a battlefield, you keep them. You don't scratch behind all that and try to figure out, "Was this guy really a bad guy that shot at us or was this a guy who was just driving a truck?"

Even more telling, what the government never did was to point out that from 1964, when the first pilot was shot down, to 1973, when they were all returned, the United States government, in its conversations, if you will, with the North Vietnamese government, consistently adhered to this perspective: "You captured them. You get to keep them until the war is over. We expect you to take good care of them. When the war ends, you will put them back in our good care."

We never demanded trials. We never demanded lawyers. We never said, "When do they get their trial?"

Why this government didn't frame the debate that way and say, "You don't understand. This is war." Now, you could have a debate about whether it's war or not, I'll grant you. But they had taken a position that it is war, and then they just sat back and didn't explain it to anybody.

So the public is caught up with the people that are opposed to everything that's going on, saying, "Oh, it's a criminal law deal and it's a domestic law deal, and they should have a right to a lawyer and a right to a trial."

There are lots of debates to be had. There are lots of issues here. But the domestic criminal law one is not there, if you agree that there is a war. I grant you that there is a debate to be had on that.

COLONEL JEFF MCCAUSLAND: One footnote I would like to add is that those who are detained at Guantánamo are annually reviewed against the criteria of whether they have any intelligence value and whether they are still a threat to the United States, and only a very small percentage will appear in front of a commission for alleged war crimes.

But, John, correct me if I'm wrong. It's conceivable that you could appear in front of a commission for alleged war crimes, be found not guilty, and that doesn't mean you are released. You are still being detained as a combat detainee for those other criteria. It's just a matter of whether or not we are going to actually find you guilty of violating the laws of war.

I think there is a public perception—and please correct me if I am wrong—that if you appear in front of a commission—the David Hicks case is perhaps the classic one, the Australian—and you are found not guilty, then, just like being found not guilty in a regular civil court, you would then be released. Not necessarily true.

GENERAL JOHN ALTENBURG: Let me ask a question first, a rhetorical question. Why did we start doing commissions and publish the order and set it all up before the war was over? What was our hurry?

I ought to make a big pregnant pause and let that flip around.

I don't know. To me, it's absurd. "Well, we have to deprive them of rights because of the intelligence value." There wouldn't be any intelligence value if the damn war was over. You wouldn't have to worry about the intelligence value.

QUESTION: General, some of the remarks that I am hearing tonight are extraordinary. It's too bad the administration didn't put them out.

What I am interested in is, in the International Criminal Court, the concept was to do exactly what, I guess, the United States has tried to do, and that is take those who are accused of terrorism and try them in front of a tribunal, which would not get the world criticism that we are being subjected to.

Is there any explanation that you can share with us as to why the United States would not sign that agreement to become a member of the International Criminal Court, if these alleged terrorists would have been subjected to that jurisdiction instead of our particular method?

GENERAL JOHN ALTENBURG:
That's a good question. When I was saying there are five or six venues that were possible, that was the one I left out. In theory, if we had signed up for that, the International Criminal Court would be a place to do that, I think.

I'm not sure all these people would qualify for the International Criminal Court. I cannot tell you off the top of my head why they might not. I just know that there are some technical aspects of the International Criminal Court. What they had done and where they did it may not, in fact, qualify them. I'm not sure non-state actors qualify, for one thing.

But people are who more steeped in the International Criminal Court and its structure would be better able to answer that question for you.

I can speak to the question about why we didn't sign it. We didn't sign it because there were still too many loose ends. When the Clinton administration signed on, the president signed on to the International Criminal Court, but then did not send it to the Senate to ratify or to approve. So he was kind of talking out of both sides of his mouth, but he wasn't really, because by signing it, we remained engaged. We were able to send people over there to negotiate the aspects of the treaty itself. Quite frankly, most of the improvements in the ICC as it went through that process were because of United States input.

Bush became president, and one of the first things he did was, instead of just letting it go the way it was going, to say, "We're coming off. I'm undoing the signature." That was a terrible thing to do, because we were cut out of the process then. All the people we had working on it couldn't try to change things.

I will close by just telling you one thing that was left open that would still cause us problems. They still have not defined the term "aggression" in the ICC treaty. That's a grave concern for everybody. If you haven't defined all the terms yet, then who knows how that will turn out?

COLONEL JEFF MCCAUSLAND: I will make a quick comment as well, because I actually had to work on that. I was on the NSC [National Security Council] staff in the White House. That was one of the issues I had to deal with when it was brought up during the Clinton administration.

There are two points I would make. One is that at the time there were discussions with Capitol Hill, and, frankly, the response from the Senate, in particular, was that there was no way this was going to be ratified. Frankly, no president of the United States wants to send things up to the Senate just to see it shot full of holes.

But being signed allows you to continue the process of dialogue, and perhaps over time, modifications could be made to the agreement that would then make it acceptable to the Senate. There are scads of examples in trade law and trade treaties and elsewhere where that has occurred.

That's number one.

Number two, there was a concern voiced at the time—it was right about the time of Kosovo—in some ways, you might say, a metaphor would be frivolous lawsuits in the civil court here in the United States. There is this guy now suing somebody for $57 million for his trousers. There was a fear voiced by some—I'm not a legal expert, that I can say this had any bearing—that people like General Clark, in his capacity as SAC [Supreme Allied Commander] Euro, could be called in front of the ICC by certain countries around the world as a, quote/unquote, alleged war criminal for his direction of the bombing campaign against Serbia in Kosovo.

I know for a fact, because I worked on it, that those were two of the things that came up at the time about that particular question.

GENERAL JOHN ALTENBURG: I will say one other thing about ICC. It's easy for everybody to say that we should be a part of all these things, but we are the target. Our concern is political prosecutions. Once you sign up for that and you are a part of it, because we are the big guy on the block, there are all kinds of people out there for whom we would then become the figurehead target, whether we deserved it or not. So there is a concern there.

We have more people at risk. We have more people deployed. Even before this thing in Iraq, we had more people around the world doing things than any other nation. Quite frankly, I submit—and I would happily entertain a discussion about it—that we do a better job than any other nation of policing our own people and prosecuting our own people and going after them and taking care of our own dirty laundry.

There have been 800 investigations in the United States Army of alleged detainee abuse—800 investigations—over 300 of which ended up in disciplinary action. Over 100 of them ended up in courts-martial of our soldiers for detainee abuse.

More important than whether your people commit crimes and abuse detainees on occasion is what you do when they do it. This country goes after them and doesn't tolerate it and doesn't condone it.

QUESTION:
But the laws of war—the example you gave had to do with war against a state. Does that also apply to non-state entities? Is there a difference in the type of war?

GENERAL JOHN ALTENBURG:
That's why there would be a debate: Is this a war? That's why there would be the debate. Can you have a war against a non-state actor?

The argument against it is that there is no "there" there. There is no entity that you can negotiate a treaty with. There is no way to say when the war is over. There is no land to conquer. There is no capital to govern. So how you can have a war with an entity like that?

The argument in favor of it is, it's a non-state entity that is more powerful, better organized, and better equipped to conduct military operations around the world than maybe half the countries in this world. They have more economic clout and organizational clout than a lot of countries.

There are 192 countries, depending on what's going on, in a given week. I did an analysis of GDP and other things, and al Qaeda would be up in the top 70 or 80, just on economic power. When you think about what they have done in terms of military organization and conducting operations, it's kind of scary.

The other thing that I think argues in favor of the fact that this is a war is the fact that—least of all, I would say, is that the president said so. The Congress said so with their resolution in the wake of 9/11—a war against the people that conducted that operation. The Supreme Court has essentially agreed that we are in a war, with the opinions and their decisions. A lot of them have gone against the administration, but implicit in their decision is that this is wartime.

NATO, for the first time, invoked the self-defense clause. The UN invoked the self-defense clause. The Rio Treaty invoked the self-defense clause. All of them, essentially, implicitly acknowledged that this is a war. That was in 2001. There is an argument about what the heck is going on now. But, clearly, the response to 9/11 in Afghanistan was war.

Again, that's the debate that we should be having, not when do these guys get trials and lawyers.

COLONEL JEFF MCCAUSLAND: Again, a quick footnote I would add is that because of the non-state actor character of our opponent, the phrase "enemy combatant" has been used instead of "prisoner of war," "prisoner of war" being reserved for those who wear a uniform representing a foreign power.

As far as being a detainee in Guantánamo or elsewhere, in essence, the only two things you don't get that a prisoner of war gets in a prisoner-of-war camp by the Geneva Convention—there are two things. One, under the Geneva Convention, prisoners in a prisoner-of-war camp are authorized to organize a band. We don't let them have a band.

Number two, under the Geneva Convention—you saw this in all the movies about prisoner camps of allied pilots during World War II—you are directed, required, to organize a chain of command based on the most senior prisoner in the camp. He or she would be the commander, and you would create your own organization based on rank. You would run routine operations in the camp using that chain of command.

For very obvious reasons, in dealing with terrorists, we do not allow them to organize themselves as an entity within the camp, with their own command structure. I think only logic explains why that occurs.

QUESTION: I indeed wanted to ask you about the designation of "enemy combatant." What has bothered me from the very outset of this whole process is the relationship of declaring somebody to be an enemy combatant and some relationship to the Geneva Convention that said there was some—I'm interested in, who had the power to do that, and why was it done unilaterally, as it was in this country?

GENERAL JOHN ALTENBURG: The nation that captures somebody determines their status, period, not the ICRC, not any other NGO, not any lawyer. The Geneva Conventions provide that the nation that captures determines the status. There are certain outlines on how to do that, but they, and they alone, determine the status. Regardless of what other people say about it, that's the capturing state's responsibility and authority.

When we captured people in Desert Storm, if we knew that they were uniformed enemy, they clearly got prisoner-of-war status right away. If they didn't, we conducted Article 5 tribunals, because we weren't sure. The Article 5 provision in the Geneva Convention says that when there is doubt, you conduct a tribunal. When there is doubt as to their status, you conduct a tribunal.

Usually, for us what that meant was that when they weren't in uniform, we weren't sure what they were. We didn't know if it was a soldier that should have been in uniform or what they were. So we conducted Article 5 tribunals.

COLONEL JEFF MCCAUSLAND: Determining POW versus enemy combatant?

GENERAL JOHN ALTENBURG: What this administration did, against all military attorney advice, was to not conduct Article 5 tribunals, which they are not required to do. Here's why. It was a dumb thing not to do, but they were entitled not to do it.

Their analysis went this way. Al Qaeda is a non-state actor. Anybody in al Qaeda cannot be a prisoner of war because they are not part of a nation, and the Geneva Convention protections are between nations. Nations sign up to it. They didn't sign up to it. They can't be protected. They are violating the law of war anyway. They espouse the violation of war. They brag about attacking civilian targets. Come on. I can hear Trent Lott saying, "Get real here."

So al Qaeda, quite frankly, is easy in terms of determining that they don't get prisoner-of-war status. The president can make that call. The president for the capturing country says they don't get prisoner-of-war status. They are enemy combatants. They are, in fact, unlawful enemy combatants. That's what he finally said, that they are unlawful enemy combatants - not a term that is in the Geneva Conventions. But in international law, we commonly talk about unlawful combatants or unlawful belligerents. Those are people who don't qualify for prisoner-of-war status.

The Taliban issue is more difficult. There is a debate on either side. It's very close. I guarantee you, 30 years from now, law professors will still be writing in law reviews articles about whether these guys should have been granted status or not

The argument goes this way. Afghanistan is a signatory to the Geneva Conventions, unlike six or seven countries in the world. There are six or seven that never signed it. Afghanistan signed it. We signed it. So both nations are signatories to the Geneva Conventions. Therefore, the armies of both countries should be protected.

The Taliban, as ragtag as they were, as sorry as they were, they were Afghanistan's army. They were the only army they had, and they were their army. Therefore, they should be declared prisoners of war.

That's the argument in favor of it.

The argument against it is, the Taliban wasn't recognized as the government of Afghanistan by the United Nations or any other nation in the world, save Pakistan and UAE [United Arab Emirates]. Therefore, they are not really a government. Therefore, they are more like a non-state actor anyway.

That's a weak argument. I believe what Jeff alluded to a minute ago is what happened. What was driving this was reverse engineering and it was results-oriented. We do not want these guys to get prisoner-of-war status because they will organize. We cannot afford to have people like this organizing in camps. So they did it that way. That's a fact of life.

As to why the administration hasn't done a better job of educating people as to the war construct and the nature of the definitions that we use in war, and why we are doing this differently and they don't have rights to attorneys—it's two reasons. The first reason is arrogance. The second reason is naïveté.

They didn't care to explain. "It's none of their business. We do what's right."

The second reason was naïveté. They didn't appreciate how important it would be to educate the public. I think they did that very naively, in not understanding that people need to understand why you are doing what you are doing. They want to have it explained to them. That has really hurt them.

QUESTION:
General, in light of your praise for how we have investigated abuses, would you comment on General Taguba's revelation that he was prohibited from following responsibility for Abu Ghraib up the chain of command?

COLONEL JEFF MCCAUSLAND:
I'm not quite sure it's his—John, do you want to talk about it?

GENERAL JOHN ALTENBURG:
I don't mind talking about that.

COLONEL JEFF MCCAUSLAND: While you think about that, why don't we take these other two questions? Why don't you ponder that for a moment? We will take these other two questions, and I will ask you to take them as a group.

QUESTION: You have spoken very well about the limitations of trying these people, given that they are non-state actors. You have also drawn attention to the fact that this war may go on without end.

Given those two facts, don't we have to consider the need for a new architecture to address the need to arrest and try these people in the future? Isn't that perhaps an argument for a new set of Geneva Conventions that would get at that precise problem?

GENERAL JOHN ALTENBURG: It may be, and I intend to be a part of that debate this summer.

But in 1944, on December 15, those 400,000 people thought they would be home probably by February 1, because we were roaring across Europe. As of December 17 or 18, right after the Ardennes counteroffensive kicked off, they were probably a little less sanguine about when this war might be over, to the extent that they had access to the news. I will bet you that by January 1, they were saying to each other, "You know, if that SOB gets to Antwerp, we might be here for five or six more years."

So I would submit to you that in many of the wars we have been in, we had no idea when it was going to end. We look back with the benefit of 20/20 hindsight, looking at four- and five-year wars. But in the second or third year of those wars, people thought they might last 10 or 12 more years.

That's a part of the equation that you have to factor in. People were starting to criticize this aspect of it and the potentially unlimited nature less than a year into it. That's why I don't worry too much about that, because wars last a long time.

If it goes 20 or 30 or 40 years, you are right. But we are working on that. Things like that are occurring. There are various organizations talking about addressing that.

But I don't know that you need a wholesale revamping of the Geneva Conventions either. I think you have to tweak what you are going to do with people when you capture them like we have captured these people. It doesn't look like there is ever going to be a resolution in terms of a treaty, where you could repatriate them. What are you going to repatriate them to? Are you going to repatriate them to the statues they blew up in Afghanistan?

Again, there is no "there" there. It's hard to get a handle on what you are going to do with them.

COLONEL JEFF MCCAUSLAND:
In terms of precedent, it might be worth also pointing out that the Soviet Union released the last 25,000 or 30,000 German POWs in 1956, 11 years after.

John, do you want to comment on the Taguba question?

GENERAL JOHN ALTENBURG: I read the article [in the New Yorker]. My sense is that he was told to investigate certain aspects and then they had other people—Schlesinger came in and so did the more senior people. They had Fay. They had Kern. They had seven or eight investigations going on at the same time.

I don't remember who appointed Taguba. I don't know at what level it occurred. It might have been at the three- or four-star level. But there may be a very simple bureaucratic response to, why wouldn't he be the guy to pursue that?

Is your question why he says he wasn't allowed to go further?

COLONEL JEFF MCCAUSLAND: Part of that was because—and you can divine that for bad reasons or good reasons—his charter was to investigate what was going on within Abu Ghraib. You can argue that that was done with malice aforethought by those who laid out his particular brief. But that was his brief.

The second part of that is, under any type of investigation, there is a requirement that if the commander of any unit is being investigated, he or she cannot be investigated by anyone of equivalent or lower rank. The commander of that particular military police brigade was a one-star general named Janis Karpinski. Therefore, as a consequence, she could only be investigated by a two-star general or higher.

Taguba just happened to be a two-star general in Kuwait. I like to say it was a military "hey, you" roster, but it probably wasn't too far away from that. We needed a two-star general who was in theater, who was available to conduct this particular investigation. That's how it happened.

The narrowness or the breadth of his charter to do that—that's one that is open now to investigation and determination.

One last question.

GENERAL JOHN ALTENBURG: I'll amplify that a little bit. It may sound bureaucratic, but the fact is, when a two-star general is charged with investigating and he has been appointed because the highest-ranking person that it looks like may be involved is a one-star, then that's why that happens. If he gets into something that looks like it might go up higher, they have to appoint somebody higher to investigate, which is why they appointed Paul Kern, a four-star, to go back over there and do an investigation. They don't want Taguba investigating General Sanchez, who is a three-star.

That would be a simple explanation. I don't know if there was more in what he was saying than that.

COLONEL JEFF MCCAUSLAND:
Let's move on to the last question, because I want to give our speaker a minute to wrap up.

QUESTION: You talked about the idea of the center of gravity of this question being, when does this war end—in this case, sometimes referred to as "the long war." Can you give us your own thoughts on what you perceive the conditions of victory to be, perhaps?

In the case of World War II, we knew what victory would look like, in theory. We didn't know when it was going to happen, but we knew what it might look like. Can you sort of give us an idea of when we will hit that point and begin to start thinking about repatriating these guys, and if so, to where, and what to do with them in the long haul?

GENERAL JOHN ALTENBURG: No, I can't. I really don't think so. I think that's the heart of it. I wouldn't pretend to try to do that.

A huge number of this group of people claim that they want to establish a caliphate. They want a new Muslim caliphate. If there are enough of them around that are still serious about doing that, and in the bargain, kill off Western society as we know it and kill as many Americans and Europeans as they can, then it would be pretty hard—I will give you an answer: When we have a conversion from that ethic and they say, "Okay, we're going to get along with everybody," I guess that would be okay.

COLONEL JEFF MCCAUSLAND:
I can recall dispatching companies of infantry to Berlin in the late 1980s to guard Spandau prison. At the time, Spandau prison had one occupant. His name was Rudolf Hess. He was in his 90s. We put a company of infantry there one month and the Russians put a company of infantry there the next month, until Rudolf expired at about 94. So people like Khalid Sheikh Mohammed could be the Rudolf Hess of the 21st century.

John, you have about a minute until we hit the appointed hour. Is there any particular concluding remark you would like to make?

GENERAL JOHN ALTENBURG: I have taken to trying to remind everybody of what they were thinking. This, in a way, is a defense of some people whose decisions I disagree with intensely and who created the most frustrating 32 months of my life in trying to change the commission process, and failing. I felt like I was beating my head against the wall the whole time that I was working on doing that. They made what I think are very ill-advised decisions in a lot of regards.

But I think everybody ought to remember that in September and October and November of 2001, we were all very afraid. We were all completely off-balance in unprecedented ways. The favorable thing you can say about the motivation for why they went as extreme as they did in some regards is that they were afraid and they were the ones, and only they were the ones, with the responsibility to defend all the rest of us. None of them wanted to be criticized later by his or her peers for being the guy that gave something away. Lawyers like to win for their clients, like to win for history, like to win for the casebooks and all the rest of it, but mostly they like for their peers to think, "You did that just right." In a negotiation, you never want a guy to say, "You left something on the table there. You really screwed that up." That bothers lawyers more than anything.

A lot of these people were lawyers. They didn't want to be the person that said, "You know, we really ought to do it this way," and leave something there that might cause another attack in November or December.

I think a lot of that was fear. There weren't that many critics, really, early on, although when that silly PMO, the Presidential Military Order, came out in November, there were plenty of criticisms—justified.

It was a notion that we want to do this as conservatively—we don't want to give up anything, because we have to protect the country.

That is the positive side.

The negative side is that this administration, long before 9/11, came in with an agenda to expand executive authority, and this created a platform for them to do that very easily. That is the other part of it that I think is very negative. Whenever it fit that particular agenda, they were really in favor of it, whether they thought we needed it or not. That's terrible. That gets back to arrogance and other things.

COLONEL JEFF MCCAUSLAND: Ladies and gentlemen, we are going to conclude the formal portion of our activity. There are refreshments in the back. I'm sure our speaker will be happy to entertain questions that we weren't able to get to while we were here in plenary.

Before we adjourn to our refreshments, please join me in a round of applause for our speaker.

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