"Six floors" of detainee operations in the post-9/11 world

Parameters, Autumn, 2005 by Thomas E. Ayres

"All you need to know is that there was a before 9/11 and an after 9/11. After 9/11 the gloves came off."

--Corer Black, CIA (1)

Before 9/11, many nations battled terrorists and mufti-clad insurgents in places like Ireland, Israel, and Algeria and subsequently detained these nontraditional combatants. These nations deliberated the applicability and relevance of the Geneva Conventions (2) and frequently decided to conduct their detainee and interrogation operations by other standards. (3) The United States had faced similarly ambiguous combatants in past conflicts, choosing "to extend basic prisoner of war protections to such persons ... based upon strong policy considerations, and ... not necessarily based on any conclusion that the United States was obligated to do so as a matter of law." (4) After 9/11, however, the United States ceased viewing its efforts against terrorism as a police enforcement action and embarked upon a Global War on Terrorism. (5) The Bush Administration asserted this was "a new kind of war" that justified reconsidering the manner in which the Laws of War would be interpreted and applied. (6) According to Defense Secretary Donald Rumsfeld, "The reality is, the set of facts that exist today with al Qaeda and the Taliban were not necessarily the set of facts that were considered when the Geneva Conventions were fashioned." (7) Certain provisions of the Geneva Conventions were even considered "quaint." (8) The United States has, by its post-9/11 policies and actions, demonstrated that the standards for conducting detainee operations, and perhaps the Geneva Conventions themselves, are ripe for reform.

The war on terror is in its fourth year, yet there has been little academic or political agreement on what detention and interrogation techniques are ethically advisable and legally allowed. US detainee operations in Afghanistan, Iraq, and Guantanamo have been labeled a "gray zone" by one analyst. (9) US classification of detainees in Afghanistan and Guantanamo Bay as "unlawful combatants" has aroused voluminous and vociferous academic debate, (10) complicated because there are no internationally accepted, clearly delineated detention and interrogation standards for treating "unlawful combatants." Even in Iraq, where the Administration conceded the Geneva Conventions applied, the overall post-9/11 paradigm shift prompted the Army's command to conduct a deliberative analysis of acceptable interrogation and detention techniques. (11) The Department of Defense is currently undergoing a more comprehensive formal initiative, with the Army acting as the lead agent. (12)

To describe the complexity of conducting modern military operations in an urban environment, US Marine Corps General Charles C. Krulak used the metaphor of a "three-block war," (13) an environment wherein soldiers or marines simultaneously fight a high-intensity conflict in one block, suppress a simmering insurgency in another block, and facilitate humanitarian aid in a contiguous third block. Military forces conducting operations must anticipate encountering an array of friendly, hostile, and neutral persons within the three blocks. Detainees from these three blocks may be interrogated for strategic, operational, or tactical reasons.

Just as recognizing the nature of the "three-block war" enables commanders to conduct successful operations in that environment, clarifying lines of demarcation within the new gray zone of detainee operations is essential. Delineating the categories of potential detainees is the starting point. Determining the limits on interrogations and other legal responsibilities for each category of detainees is the logical next step. The Geneva Conventions provide the basis for considering different categories of detainees; they also provide the legal, ethical, and moral framework for differentiating treatment among the categories. Publishing a post-9/11 framework and clearly communicating that the United States faithfully adheres to a well-enunciated and reasoned, if new, standard can substantially support US policy and strategy.

The Bush Administration's strict legal analysis and categorization of detainees in the Global War on Terrorism offers a useful starting point for considering the levels of protection currently afforded by the Geneva Conventions. Before developing guidance on allowable interrogation techniques, the Administration sought to distinguish these detainees as something other than POWs as defined by Geneva III. (14) The war on terror was a global war with a new kind of enemy. (15) The Administration considered Geneva's categories of protected persons, protected places, and occupiers' obligations, and assessed that strict adherence would result in unnecessary and counterproductive legal, procedural, and monetary obligations.

As an angry nation reeled from the 9/11 attack, the Bush Administration made an initial determination against granting POW status to Taliban and al Qaeda members detained in Afghanistan. On 19 January 2002, Secretary Rumsfeld transmitted a directive to the Combatant Commanders that captured members of the Taliban and al Qaeda were to be treated humanely. He added, however, that they "are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949." (16) On 28 January 2002, President Bush stated that he had met with his national security team and decided the detainees were illegal combatants and would "not be treated as prisoners of war." (17)