Known and Unknown_ A Memoir - Donald Rumsfeld [301]
Some detainees were supporters of the Taliban who had joined the fight against the Northern Alliance and coalition as foot soldiers. Others were senior Taliban leaders. Still others were foreigners, many affiliated with al-Qaida. They had come to Afghanistan from various corners of the world—the Middle East, Europe, Southeast Asia, and Africa—to conduct jihad against the West and to kill Americans. The origins and records of some of the Northern Alliance prisoners were unclear. These men had been picked up in bad company, and some were terrorists or the terrorists’ allies. But others may have been innocent people who happened to be in the wrong place at the wrong time. While we couldn’t afford to release dangerous men with important intelligence information in their heads, we certainly didn’t want to hold mere bystanders.
In analyzing the legal status of the detainees, government lawyers examined the Geneva Conventions. Updated and refashioned in 1949, the modern Geneva Conventions reflected the fact that Axis powers had committed horrific crimes against noncombatants during World War II. The premise of the 1949 Geneva Conventions is that a civilized and responsible nation, even while fighting and killing enemy soldiers, should abide by humane rules and mitigate the brutality of war. The Conventions regulate the way parties to Geneva are to treat enemy prisoners, setting up a system of incentives to encourage combatants to obey the laws of war and discourage the loss of innocent life.
The architects of the modern Geneva Conventions also envisioned and assumed a degree of reciprocity and mutuality of interest among the warring parties. The Conventions’ drafters knew about irregular warfare, such as that of the French anti-Nazi resistance, but they did not have in mind or prescribe rules for asymmetric warfare that deliberately targets civilians—like al-Qaida’s large-scale use of suicide “martyrs.” Al-Qaida’s videos of beheadings publicly celebrate cruelty, proving beyond a doubt that al-Qaida does not treat detainees humanely, especially Americans.
George W. Bush was not the first president to face the issue of whether terrorists should be granted the protections of the Geneva Conventions. During the Cold War, the Soviet Union and its proxies pushed for adding rules to the Geneva Conventions that would grant such privileges to, and therefore legitimize, Soviet-backed guerrillas. President Ronald Reagan stood firmly against those revisions.15 He said the amendments giving irregular combatants the full protection of the Geneva Conventions would “undermine humanitarian law and endanger civilians in war.”16 The Reagan administration also was convinced that rewarding irregular combatants with the full rights and privileges of lawful combatants would not only make a mockery of the Geneva Conventions, but would undermine one of their key purposes, which was to protect civilians.
At that time, the Washington Post lauded President Reagan’s position in an editorial entitled, “Hijacking the Geneva Conventions.”17 The Post approvingly quoted Reagan: “[W]e must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.” The New York Times editorial board agreed, calling the proposal “a shield for terrorists.” It added:
President Reagan has faced more important but probably no tougher decisions than whether to seek ratification of revisions to the 1949 Geneva Conventions. If he said yes, that would improve protection for prisoners of war and civilians in wartime, but at the price of new legal protection for guerrillas and possible terrorists. He decided to say no, a judgment that deserves support.18
By 2002, both the New York Times and the Washington Post editorial boards had swung a full 180 degrees in the opposite direction.19
Consistent with the Reagan administration precedent, there was broad consensus in the Bush administration and,