Slaughter, Yoo debate planned terrorism tribunals


Deputy Attorney General John Yoo and Professor Anne-Marie Slaughter debated plans for the creation of military commissions to try suspected members of Al Qaeda and the Afghani Taliban on Monday before an audience of 80 HLS students at a forum sponsored by the Federalist Society.

Yoo, who said he was expressing personal views rather than Justice Department policies, discussed the history and relevance of the laws of war to the detainees currently held at the U.S. Naval Base in Guantanomo Bay. Yoo claimed that it was unnecessary to confer the benefits of POW status to the detainees, which would grant “Hogan’s Heroes” treatment that includes access to scientific implements, recreation time, barracks facilities and restricts interrogation. Most importantly, POW status creates an understanding that the prisoners are to be released at the cessation of hostilities, Yoo claimed.

Yoo stated that the detainees are not covered by the Geneva Conventions, which anticipate only conflicts between states and conflicts within a state. Since neither of those conditions apply to a terrorist organization, Yoo suggested that the U.S. must apply its leadership role by creating a new law of war to cover groups that can inflict damages comparable to states but do not “conduct themselves in an honorable fashion on the battlefield.”

Yoo said that there may appear to be a difference between Al Qaeda and the Taliban, since the latter organization was the de facto military of Afghanistan. However, Yoo said that the Taliban failed to meet Geneva Convention requirements that armed forces be commanded by responsible authorities, wear uniforms, carry arms openly and conduct operations according to the laws of war in order to receive the protections of POW status.

Yoo, who also taught Constitutional law at Boalt Hall, claimed that the Constitutional legitimacy of military tribunals is clear, noting that such tribunals had been used by presidents from Washington to Franklin Roosevelt. The benefits of such tribunals, according to Yoo, include swift dispensation of justice, improved security for court officials and improved ability to handle confidential information. Yoo also said that military commissions may have an acquittal rate of 13 to 14 percent, which may be higher than that of civil courts.

Slaughter agreed with Yoo’s analysis of Al Qaeda detainees, claiming that the laws of war would not apply to them since they are “unlawful combatants.” She also agreed that individual members of the Taliban who are shown to violate the laws of war could also be held as mere prisoners rather than as POWs. She disagreed heartily on the proposed framework, which she views as a military approach rather than a criminal one.

Regarding the need to create a new law of war, Slaughter stated, “As lawyers, when we have an unanticipated case, we don’t start by throwing out the statute. We look at the underlying spirit and at the textual provisions to see where we can apply existing rules.” According to Slaughter, the Geneva Conventions apply to the Taliban as they would for any other internal conflict.

Slaughter challenged Yoo’s assertion that the Taliban does not meet the four requirements for an individual to be a member of armed forces, suggesting that the Taliban’s structure and activities are no worse than other groups that the U.S. has recognized as armed forces. She also said that the Geneva Conventions recognize irregular forces and provide rules that confer POW status upon them.

Regarding Yoo’s assertion that the Taliban does not abide by the laws of war, Slaughter pointed out that the Taliban conducted their actions according to their own interpretation of those laws. Slaughter claimed that if their interpretation were inadmissible, then “the Geneva Conventions would be limited to various Western countries and a few other countries in the world.”

Slaughter suggested that failing to apply the Geneva Conventions would put U.S. soldiers at risk in other countries that might also refuse to enforce the Geneva Conventions when they capture Americans. Further, it would create problems in relations with allies, who are essential to dealing with the international network of Al Qaeda and other groups. Finally, Slaughter claimed that this approach would damage America’s credibility as a country that claims to be fighting to protect the “rule of law,” as it would require violating that law.

Slaughter criticized Yoo’s justifications of the military tribunals, pointing out that Zaccarias Moussaoui, the alleged 20th hijacker, is going to be tried in civilian court, even though the same concerns regarding confidential evidence, security and swiftness would apply. Yoo responded that the issues of confidential information, particularly the sources and methods of acquiring evidence, had become a problem in the past, though he declined to specify details.

Slaughter proposed creating an international judicial system, perhaps modeled on the International Criminal Tribunal for the former Yugoslavia, to which countries could submit their own detainees rather than extradite individuals to the United States, since the latter option might pose serious domestic difficulties. Yoo said that there appeared to be little interest in creating such a system, and that there would be certain problems with any international structure, since it would probably be proscribed from imposing the death penalty.

Finally, Yoo mentioned that the rules that are being drafted by the Defense Department will deal with most of the concerns voiced by critics of the military tribunals, such as providing counsel, public hearings and some form of appellate review. Specifically, Yoo stated that there would be no secret executions conducted by any tribunal system, and that the drafters would ensure that the tribunals were “full and fair.”

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