Military Tribunals for POWs Debated

A Harvard law professor and member of the Bush administration went head-to-head yesterday in a debate on the constitutionality and policy implications of using military tribunals to try those captured in the United States’ war on terrorism.

Both Armstrong Professor of International, Foreign and Comparative Law Anne-Marie Slaughter and Deputy Assistant Attorney General John C. Yoo ’89 invoked the stipulations of the Geneva Convention—the treaty that dictates the laws of modern warfare—in debating the treatment of Afghan detainees in the U.S. military base at Guantanamo Bay, Cuba.

Yoo, who is also a professor of law at the University of California, Berkeley, advocated the use of military tribunals on the basis that the Taliban and al-Qaeda network do not qualify as states whose fighters could be deemed prisoners of war (POWs).

“If you are a POW, you stop fighting,” Yoo said of the Afghan detainees. “[But] they want to try to kill some of their guards if possible. They want to try to kill any American they can.”

Slaughter agreed that al-Qaeda members are not legitimate POWs under the Geneva Convention, but criticized the Bush administration’s support of tribunals. She argued that such a military framework allows the U.S. to “create [law] as we go.”

Slaughter also argued that the Taliban was a legitimate state under the Geneva Convention and that Taliban prisoners warrant treatment as POWs.

She warned of the diplomatic repercussions of choosing solely a military over a criminal framework.

“No military commissions have ever tried terrorists. If we try them, we’re going to have to kill them, and do it in secret,” she said.

Such actions will damage both America’s image abroad and the anti-terrorist coalition the U.S. has built in military action against Afghanistan, Slaughter said.

But Yoo cited efficiency, domestic security and civilian safety and the ability of military tribunals to make use of classified information as advantages of the tribunals.

“Think about the disruption and security risks if 200 to 300 prisoners were brought into the U.S.,” Yoo said.

Yoo and Slaughter agreed that the use of military tribunals for “unlawful fighters” and non-citizens who commit crimes outside of the U.S. is constitutional.

Both the Supreme Court and Congress have recognized tribunals’ use in such cases and several presidents have invoked military tribunals in wartime, Yoo said.

But Slaughter was not convinced of the constitutionality of military tribunals trying individuals who reside in the U.S. or who commit crimes while in the U.S.

Ultimately, she said, military tribunals may be appropriate in some cases but should be used with discretion.