[Ppnews] The Dangerous World of Indefinite Detentions

Political Prisoner News ppnews at freedomarchives.org
Wed Jun 10 12:01:37 EDT 2009

While this is a rather long piece - it is extremely significant

June 10, 2009

 From Vietnam to Abu Ghraib

The Dangerous World of Indefinite Detentions


Where you find administrative detentions, you are 
likely to find torture. The reason is simple and 
can be traced to the elements of administrative 
detention itself: the absence of human rights 
safeguards and normal legal guarantees such as 
due process, habeas corpus, fair trial, 
confidential legal counsel, and judicial review; 
vague and confusing definitions, standards, and 
procedures; inadequate adversarial procedural 
oversight; excessive Executive Branch power 
stemming from prolonged emergencies; and the 
involvement of the Central Intelligence Agency 
(“CIA”) or other secret, thus unaccountable, Executive Branch agencies .

Without such protections, justice does not work 
and human rights are jeopardized. As William F. 
Schultz, Executive Director of Amnesty International, put it:

we are witnessing the orchestrated destruction 
by the United States of the very basis, the 
fragile scaffolding, upon which international 
human rights have been built, painstakingly, bit 
by bit, since the end of World War II.”

The system was been intentionally broken by the 
Bush Administration, just as it was by the 
Johnson and Nixon Administrations during the Vietnam War.

Few legal scholars or government officials have 
discussed the historically established connection 
between administrative detentions and torture. 
The subject only came into public consciousness 
with the revelation that U.S. soldiers were 
torturing terrorist suspects at Abu Ghraib Prison 
in Iraq, Bagram Airbase in Afghanistan, and the 
detention facilities at the U.S. Naval Base in 
Guantanamo, Cuba. Since then, American and 
foreign journalists and human rights activists 
began to raise suspicions, subsequently borne 
out, that U.S. soldiers and CIA officers were 
routinely torturing terrorist suspects at 
numerous detention centers around the world.

The Vietnam detention procedures provide a clear 
and compelling flow chart of the web of 
connections between administrative detentions, 
intelligence laws, national security courts (i.e. 
courts intended to deal exclusively with national 
security concerns), violations of international 
law (particularly the Geneva Conventions), and 
torture. These components now also appear in U.S. 
law and policies in the War on Terror.

The Phoenix Program and the War on Terror

In June 1967, the CIA launched a screening, 
detention, and interrogation program in Vietnam 
that was a major building block of what 
eventually became known as “the Phoenix Program.” 
By the end of the Vietnam War, Phoenix had become 
notorious for its paramilitary death squads, 
which claimed between 20,000 (according to the 
CIA) and 40,000 (according to the South Vietnamese) lives.

Seldom, however, has Phoenix been recognized for 
the huge detention and interrogation facet that 
enabled the CIA to compile computerized 
blacklists of suspected terrorists. As in Iraq 
(and the unknown “black sites” where so-called 
“ghost detainees” are held), where the U.S. does 
not keep track of civilian deaths, it is not 
known how many innocent people were caught in the 
Phoenix dragnet. It is only known that Phoenix 
led to the torture and murder of many, possibly 
thousands of innocent Vietnamese people.

The basis for the screening, interrogation, and 
detention aspect of Phoenix was established in 
1956, when the fledgling Government of Vietnam 
issued Ordinance 6, which provided for the 
administrative detention of “security 
offenders.”  Ordinance 6 was succeeded by several 
Decree-Laws and Ministerial orders, the most 
significant being the 1965 “Emergency Decree Law 
3/65.” This law provided for “administrative 
detention of persons considered dangerous to the 
national security, without court hearing.” The 
detention orders were referred to as “An Tri.”

Today, the War on Terror has engendered three 
American detention “laws” to deal with the new 
enemy of the twenty-first century. These resemble 
An Tri detentions in numerous and various ways as 
discussed in the next section and the remainder 
of this paper. These “laws” are: Section 412 of 
the PATRIOT Act, which provides for mandatory 
indefinite detention of aliens considered 
dangerous to national security, the presidential 
Military Order of November 13, 2001 (and the 
accompanying Military Commissions procedures), 
and the presidential designations of so-called “unlawful enemy combatants.”

Through his Military Order, Bush granted himself 
extraordinary powers to identify al Qaeda members 
and those who harbor them, and to detain these 
people without review by the judicial or 
legislative branches of government. The 
subsequent Department of Defense Military 
Commissions Order No. 1 (“MCO”) was the “enabling 
law” that put the Military Order into effect. 
Finally, there came Bush’s “unlawful enemy 
combatant” (“UEC”) designations of United States 
citizens, designations not based on his Military 
Order but potentially triable under the MCO.

In addition to the lack of due process, the main 
theme of these laws is overarching executive 
power. In none of them are the incarcerations 
judicially imposed or based on proof of criminal 
activity that would be admissible in a court of 
law. In each, an official of the Executive Branch 
has near-complete unilateral authority to 
determine who is detained and for how long. Those 
held under Section 412 are subject to periodic 
review by the Attorney General and his 
determinations are appealable only to the United 
States Court of Appeals for the District of 
Columbia. Those subject to the Military Order may 
not appeal to any court of law, including 
international courts. The Administration claimed 
that those held under Bush’s unlawful enemy 
combatant designations had neither due process nor habeas corpus rights.

More than anything else, it is this theme of 
near-absolute, unreviewable executive authority 
that has the potential to bring Phoenix home to roost.

During the Vietnam War, the Phoenix 
Program  coordinated the paramilitary and 
intelligence components of some two-dozen 
counterinsurgency programs in an attempt to 
"neutralize" the “Vietcong infrastructure” 
(“VCI”). The euphemism "neutralize" meant to 
kill, capture, make to defect, or turn members of 
the “infrastructure” into double agents. The word 
"infrastructure" referred to civilian members of 
the “shadow government” that was managing the 
insurgency in South Vietnam. In other words, the Vietcong or VCI.

Members of the infrastructure were referred to as 
“national security offenders” no matter what 
their ideology; but if they were members of the 
Communist Party, they were also referred to as 
“Communist Criminals,” insofar as Communism had 
been outlawed and was a separate crime of status. 
Screening virtually everyone in South Vietnam, 
and then detaining and interrogating suspects, 
was the systematic way the CIA sought to identify members of the VCI.
While no extant copy of Emergency Decree 3/65 has 
been located, a later renewal of the law, issuing 
from the State Department’s Agency for 
International Development, “continues the 
emergency power of the Executive [of Vietnam] to 
temporarily detain people considered to 
constitute a danger to the National Security by 
publicizing or carrying out Communism in any 
form.” Temporarily meant two years, renewable “if 
the offender is considered still to constitute a danger.”

Screening, detaining, and interrogating suspects 
was also how the CIA produced informants, 
defectors, and double agents. Capture of VCI was 
the object. But VCI of “high value” (a Phoenix 
term recently exhumed by the CIA and used in the 
War on Terror and in Iraq), were usually 
accompanied by bodyguards, so midnight 
assassinations and ambushes of high value VCI was 
the most common form of exploitation of the 
intelligence gathered through informants, 
defectors, double agents, and interrogations.

Under the An Tri administrative detention 
emergency decree, due process was totally 
non-existent for suspected members of the VCI . 
People whose names appeared on Phoenix blacklists 
were subject to midnight arrest, kidnapping, 
torture, indefinite detention, or assassination, 
simply on the word of an anonymous informer. 
After capture and interrogation, if they were 
still alive, they were tried by “special courts” 
or military tribunals not unlike those proposed 
by Bush that were not staffed by legally trained 
judges. As one official document noted: “In the 
Special Courts which act in terms of special 
laws, criminal procedures are reduced to a strict 
minimum.” There was “no preliminary investigation 
although the offense is of a criminal nature” and 
no appeal. The judges could not “pronounce 
extenuating circumstances, suspend action, nor 
punishment under the set minimum.” As a result, 
“the principle of individualization of punishment 
cannot apply, which is in flagrant contradiction 
with the concept of justice and responsibility.”

Legally unobstructed by the concepts of justice 
and legal responsibility, the CIA was the hidden 
force behind Decree 3/65 and its special courts, 
just as it was the hidden force behind the 
Phoenix Program. Likewise, the CIA is one of the 
hidden forces behind the reconstruction of Iraq’s 
Ministry of Interior, secret police forces, and 
judicial system, and the interrogations of 
detainees at various detention centers.

To escape responsibility and ensure “plausible 
deniability,” the CIA in Vietnam concealed the 
detention aspect of Phoenix under cover of the 
U.S. military/civilian administration in charge 
of the reconstruction of South Vietnam. The 
Vietnamese army and police Special Branch, along 
with U.S. military forces, provided the bulk of 
manpower and facilities used to “screen” 
detainees for the CIA, in the same way the CIA 
and military intelligence today train locals to 
apply Pentagon-mandated procedures to screen 
terrorist suspects abroad and maintain military 
control of prisons in Iraq and Afghanistan.

The CIA built Phoenix operations centers in each 
of South Vietnam’s 240 districts, in order to 
secretly identify and neutralize VCI. Often, the 
CIA relied on the type of heavy-handed military 
sweeps now being conducted in Iraq. These sweeps 
invariably filled makeshift detention centers 
(barbed wire cages with tin roofs) with innocent 
old men, women and children, since the actual VCI 
had penetrated the government’s military and 
police security services and often knew when the 
sweeps were coming. As in Iraq today, active 
insurgents were often better able to evade capture than innocent persons.
By its own admission, the CIA had no effective 
procedure of distinguishing actual “national 
security violators” from innocent people­an 
innocent person perhaps being, for example, a 
rival businessmen being blackmailed by the local Province Chief.

In all, the interrogation and detention centers 
there had substandard living conditions and 
indiscriminate crowding of POWs, common 
criminals, and VCI suspects. There was no way of 
knowing who should be interrogated, jailed, or released.

Like the administrative detentions under the 
PATRIOT Act and Bush’s Military Order, the 
Vietnamese-staffed military tribunals and 
security committees that heard cases could 
repeatedly delay someone's “trial.” An Tri 
hearings could be delayed for up to two years or 
more­usually until the proper bribe was paid. 
When brought to trial, a person was unlikely to 
have a lawyer, which did not really matter, as 
there was no due process, no habeas corpus, and no need of evidence to convict.
The CIA’s abuses could not be hidden forever and 
eventually pressure from the Red Cross and 
liberal American Congresspersons forced the CIA 
to confront the same legal questions about 
detainees and “enemy combatants” (a designation 
that implies guilt before any is proven) that are now finally being raised.

Detentions Under Present-Day Federal Law

The detention provision of the PATRIOT Act added 
a provision to the Immigration and Nationality 
Act (INA), mandating that the Attorney General 
“shall take into custody any alien who is 
certified” by him. Earlier immigration law 
allowed for continued detention only when an 
alien was a danger to the community or flight risk.

An alien may be certified if the Attorney General 
“has reasonable grounds to believe” that the 
alien has engaged in any one of a great number of 
listed prohibited activities. The problem, of 
course, is that here, just as in the An Tri 
procedures, there is only limited judicial review of these certifications.

Once an alien is certified, “the Attorney General 
shall maintain custody of such an alien until the 
alien is removed from the United States. . . . 
irrespective of any relief from removal for which 
the alien may be eligible.” While Section 412 
requires that an alien who has not been removed 
or charged with a crime within seven days “shall 
[be] release[d],” a person “whose removal is 
unlikely in the reasonably foreseeable future, 
may be detained for additional periods of up to 
six months . . . if the release of the alien will 
threaten the national security of the United 
States or the safety of the community or any 
person.” The Attorney General “shall review” the 
certification every six months.

The result, of course, as with the An Tri 
detentions, is that “[b]y the use of repeated 
extensions a suspect can be detained 
indefinitely” without ever having any sort of genuine due process hearing.

What we do not yet realize is that the precedents 
set by the PATRIOT Act administrative detentions 
of aliens not only could be expanded to include 
citizens, but already have been­by the 
President’s unlawful enemy combatant 
designations. The concern is not that a few 
innocent aliens may be indefinitely detained but 
that this could lead to the indefinite 
administrative detention of anyone who criticizes the government.

The crimes under the national security laws of 
the Republic of Vietnam during U.S. occupation 
are ominously similar to those under the alien 
terrorism provisions of the PATRIOT Act. Both 
sets of laws were intended to address acts that 
threaten the public safety and/or national 
security but neither provided for criminal 
prosecution, procedural due process, or Sixth 
Amendment-type protections. Both involved indefinite detentions.

National security and foreign intelligence 
concepts are central to the rationale for 
indefinite administrative detentions. It is these 
concepts that prompt or even compel the creation 
of detention programs that, by definition, must 
evade constitutional and human rights 
requirements. Administrative detentions are national security detentions.

Proponents of administrative detentions claim 
that administrative detentions are the humane 
alternative to dealing with national security and 
foreign intelligence issues­the other way being 
assassination. Criminal trials are viewed as 
inadequate. Thus, it is important to look at the definitions of these concepts.

Provisions of the PATRIOT Act, other than Section 
412, where national security is a key concept are 
those that relate to foreign intelligence. The 
concept of foreign intelligence is the bridge 
that has permitted national security detentions 
to be written into our federal law. Where in 
South Vietnam such detentions were permitted due 
to insurgency, national emergency, and war fought 
within that nation’s borders, now they are 
permitted in the United States because of an 
amorphous (congressionally undeclared) “War on Terror” fought everywhere.

U.S. officials since 9/11 have repeatedly stated 
that terrorism is an utterly new animal, that we 
are fighting a new kind of war, but this is 
exactly what officials said about Vietnam. The 
U.S. has always perceived a need for foreign 
intelligence, and the two (terrorism and foreign 
intelligence) have now become inextricably 
intertwined in our laws. Where foreign 
intelligence used to be gathered by spying 
overseas (or on foreign powers and their agents 
who were here in the U.S.), which was exclusively 
an Executive Branch function, foreign 
intelligence investigations since 1978 have been 
regulated by the Foreign Intelligence 
Surveillance Act, or FISA, and a special, secret 
federal court called the FISA Court or FISC, that 
reviews applications to spy domestically.

While FISA was enacted in order to curb 
indiscriminate and unreviewable Executive Branch 
surveillance, the law has led gradually to the 
very dangerous mixing of criminal law (which 
provides for the usual constitutional 
protections) and foreign intelligence law­i.e. 
FISA (which does not). It has also led to the 
interchangeability of the terms foreign 
intelligence investigation, terrorism 
investigation, and national security 
investigation. In other words, anything that can 
be linked to a terrorism investigation is a 
national security investigation, which naturally 
involves foreign intelligence. A national 
security investigation may or may not involve 
terrorism, but will likely involve application of FISA.

Just about anything can be linked to national 
security. And once linked, the lowered 
constitutional standards of FISA kick in. This 
opens the door for almost anybody to be 
investigated and, when considered alongside the 
detention provision, for almost anybody to be detained.
Again, while the PATRIOT Act detention provisions 
are intended to permit detentions of only aliens 
who are thought to be national security risks, it 
is clear that these provisions set a precedent 
for government detentions of innocent dissenting 
citizens and can be extended to those who merely 
disagree with the government. Indeed, with police 
actions and prosecutions against grass roots 
activists increasing, some might argue it is already happening.

A closer look at the definitions of foreign 
intelligence and national security reveals some 
ominous threads. Oddly, national security is not 
defined in FISA (which is, of course, the law 
that most deals with issues of national 
security). Rather, it is defined in the 
immigration laws relating to excludable and 
removable aliens. National security is there 
defined as “the national defense, foreign 
relations, or economic interests of the United 
States.” Something as routine and legally 
permissible as a workers strike at a Coca Cola 
plant in Colombia could be construed as a threat under this definition.

Although national security is not defined in 
FISA, “threats to national security” are set 
forth in FISA in provisions which establish the 
basis for coordination between intelligence and 
law enforcement. These provisions use the 
identical language as that used in defining 
foreign intelligence information, discussed in the next paragraph.

Foreign intelligence information (and therefore a 
“threat to national security”) is:

[I]nformation that relates to, and if concerning 
a United States person is necessary to, the 
ability of the United States to protect 
against­(A) actual or potential attack or other 
grave hostile acts of a foreign power or an agent 
of a foreign power; (B) sabotage or international 
terrorism by a foreign power or an agent of a 
foreign power; or (C) clandestine intelligence 
activities by an intelligence service or network 
of a foreign power or by an agent of a foreign power.

This type of foreign intelligence information is 
sometimes called “protective” or 
“counterintelligence” information. It requires 
the type of activity we usually think of spies engaging in.

A second definition of foreign intelligence 
information in FISA includes information relevant 
or necessary “to the national defense or the 
security of the United States” or “the conduct of 
the foreign affairs of the United States.” 
According to the FISA Review Court: “This 
definition generally involves information 
referred to as ‘affirmative’ or ‘positive’ 
foreign intelligence information rather than the 
‘protective’ or ‘counterintelligence’ information 
. . . .” This type of intelligence is a much 
vaguer, more expansive type of information. Just 
about anything could be relevant to the national 
defense or conduct of foreign affairs. Indeed, by 
this definition, the Phoenix Program was a 
foreign intelligence operation, designed 
ultimately to identify the managers of the insurgency in North Vietnam.

With either type of intelligence, it is important 
to remember that such information is gathered for 
the purpose of protecting the interests of the 
nation, not for bringing criminal prosecutions. 
This distinction is important when you consider 
that intelligence information is not protected by 
the Fourth Amendment probable cause requirement. 
In other words, those gathering information under 
a foreign intelligence investigation do not have 
to provide a judge with evidence of probable 
cause of criminal activity in order to obtain a 
warrant, although information obtained via a FISA 
warrant can nonetheless be used in a criminal prosecution.

The FISA Review Court, convened for the first 
time in history in 2002 to review a FISA Court 
decision on the interpretation of the PATRIOT Act 
provision relating to the proper standard for 
FISA warrants, noted that certain FISA 
definitions do require criminal activity. While 
FISA does not require probable cause of criminal 
activity, it does require probable cause that the 
target is a foreign power or an agent of a 
foreign power. Thus, the FISA Review Court noted:

The definition of an agent of a foreign power, if 
it pertains to a U.S. person . . . is closely 
tied to criminal activity. The term includes any 
person who “knowingly engages in clandestine 
intelligence gathering activities . . . which 
activities involve or may involve a violation of 
the criminal statutes of the United States,” or 
“knowingly engages in sabotage or international 
terrorism, or activities that are in preparation therefor [sic].”

While the Court draws much of its subsequent 
analysis from its observation that foreign 
intelligence warrants do, after all, relate to 
criminal activity, it nonetheless notes that: 
“The term ‘foreign power,’ . . . is not defined 
[in FISA] solely in terms of criminal activity. 
For example, although the term includes a group 
engaged in international terrorism, which would 
involve criminal activity, it also includes any 
foreign government.” Thus, even if criminal 
activity does underlie some FISA warrants, FISA 
does not require proof of such activity (rather 
it assumes it), and the predetermined underlying 
criminal activity inherent in the definition is 
no justification for allowing a lack of probable 
cause of criminal activity standard in cases that 
eventually become criminal prosecutions. Exactly 
the opposite, one would think.

Astonishingly, the FISA Review Court itself 
acknowledged that the constitutional question of 
whether FISA strikes the right balance “has no 
definitive jurisprudential answer” and that “to 
the extent a FISA order comes close to meeting 
[the requirements of federal criminal law], that 
certainly bears on its reasonableness under the 
Fourth Amendment.” In any case, they declined to 
decide the issue. The Court concluded that “the 
procedures and government showings required under 
FISA, if they do not meet the minimum Fourth 
Amendment warrant standards, certainly come close.”

Military Commissions and Unlawful Enemy Combatants

Bush cited Congress’ September 18, 2001, 
Authorization for Use of Military Force (“AUMF”) 
and his authority as Commander-in-Chief to 
justify his Military Order of November 13, 2001.

The AUMF authorized the President to “use all 
necessary and appropriate force against those 
nations, organizations, or persons he determines 
planned, authorized, committed, or aided the 
terrorist attacks that occurred on September 11, 
2001, or harbored such organizations or persons, 
in order to prevent any future acts of 
international terrorism against the United States 
by such nations, organizations, or persons.”

It took the Department of Defense four months to 
establish procedures for military tribunals. On 
March 21, 2002, it issued Military Commission 
Order No. 1 (“MCO”) providing “Procedures for 
Trials by Military Commissions of Certain 
Non-United States Citizens in the War Against Terrorism.”

However, in the meantime hundreds of men had 
already been held in indefinite detention at 
Guantanamo, Abu Ghraib and other locations, and, 
as has become increasingly clear from news 
reports, untold numbers had already been tortured 
and in some cases murdered at the hands of their captors.

In any case, certification under the Military 
Order did not work well enough. Although it 
provided for written certification of al Qaida 
terrorists, by the time the MCO was issued, 
Defense Department officials “indicated they 
would hold the Guantanamo prisoners indefinitely 
and on different legal grounds” than the Military 
Order provided for­“as ‘enemy combatants’ in a war against the United States.”

The reason was apparently that “intelligence 
officers began reporting back to the Pentagon 
that they did not have enough evidence on most 
prisoners to even complete the [certification] 
forms” required by the Military Order. Thus, 
where there was not enough evidence to detain 
under the Presidential Military Order 
certification process or for that matter to 
detain on pending criminal charges, new, 
different legal grounds, based solely on the 
President’s determination­the unlawful enemy 
combatant designations­were simply substituted.

The enemy combatant designations have been 
applied to both non-citizen detainees at 
Guantanamo and to several American citizens being 
detained at military brigs in the United States. 
The Administration argued that enemy combatants 
had no due process or habeas corpus rights 
whatsoever. The Supreme Court disagreed, handing 
down its landmark decision in Hamdi v. Rumsfeld, 
in which the Court ruled that a U.S. citizen 
enemy combatant captured on a battlefield abroad 
in combat against U.S. forces was entitled to 
have his status determined by a neutral decision 
maker. The same day the Hamdi decision was handed 
down, the Court also decided in Rasul v. Bush 
that Guantanamo detainees also had some due 
process rights and a habeas corpus right to file 
in any U.S. federal court. The Rasul decision led 
to the Defense Department establishing the 
“Combatant Status Review Tribunals” (“CSRT”), 
which some feel fail to satisfy even the minimum 
standards of due process required either by Rasul or Hamdi.

Article 5 of the Geneva Convention Relative to 
the Treatment of Prisoners of War (also called 
the Third Geneva Convention and often abbreviated 
“GPW”), states: “Should any doubt arise as to 
whether persons, having committed a belligerent 
act and having fallen into the hands of the 
enemy,” are POW’s, “such persons shall enjoy the 
protection of the present Convention until such 
time as their status has been determined by a competent tribunal.”

Until after the Supreme Court decision in Rasul, 
President Bush refused to accord detainees the 
protections of POW status or even to afford them 
any status hearing at all. Similarly, in Vietnam, 
officials declared that Geneva Common Article 3, 
common to all four of the Geneva Conventions, 
applied “only to sentencing for crimes and [did] 
not prohibit a state from interning civilians or 
subjecting them to emergency detention when such 
measures are necessary for the security or safety of the state.”

Common Article 3 prohibits “the passing of 
sentences and the carrying out of executions 
without previous judgment pronounced by a 
regularly constituted court, affording all the 
judicial guarantees which are recognized as 
indispensable by civilized peoples.” Article 3 
has, according to one commentator, “been 
described as ‘a convention within a convention’ 
to provide a general formula covering respect for 
intrinsic human values that would always be in 
force, without regard to the characterization the 
parties to a conflict might give it.”

However, as with the Bush Administration, so 
during Vietnam, “the United States and South 
Vietnamese Governments . . . agreed that 
humanitarian treatment must be accorded to all 
persons,” and ultimately, when its hand was 
forced, the U.S. acknowledged that there were 
“aspects of the ‘an tri’ procedure [that] 
raise[d] some problems which give us concern.” 
Officials testified, however, that the procedures 
were being improved to “accord with fundamental 
concepts of due process, and to improve the conditions of internment.”

By 1971 the United States Military Assistance 
Command in Vietnam (“MACV”) had instituted 
screening procedures to precede the detention 
proceedings. Like the screening procedures in use 
now at Guantanamo, it is doubtful whether these 
procedures satisfied Geneva’s requirements.

In 1966, MACV first issued a directive pertaining 
to the determination of POW status. Under this 
directive, identifiable North Vietnamese Army and 
Vietcong fighters were accorded POW status upon 
capture. For all others, a screening procedure 
was employed. So-called “Combined Tactical 
Screening Centers” were “activated.” Screenings 
were to be conducted at the “lowest echelon of command practical.”

According to Congressional Research Service 
attorney Jennifer Elsea, “the first 
implementation of written procedures for . . . 
tribunals” under Article 5 of the Third Geneva 
Convention since Geneva’s signing in 1949, was 
set forth in this 1966 MACV directive. However, 
it is clear that, in fact, the directive grew out 
of official intent to evade Geneva’s requirements 
while satisfying Congress that the U.S. was 
trying to comply “despite the anomalies created 
by attempting to apply rules essentially designed 
for a World War II situation to one involving a 
political, subversive infrastructure.”

All detainees were to be classified as either 
prisoners of war or non-prisoners of war. 
Non-POW’s were either civil defendants, 
returnees, or innocent civilians. Returnees were 
persons who, regardless of past membership in any 
combat force, voluntarily submitted to the 
“control” of the Government of Vietnam. Civil 
defendants were not entitled to POW status but 
were subject to trial for offenses against 
Vietnamese laws. These included spies, saboteurs, and terrorists.

Detainees were defined as “[p]ersons who have 
been detained but whose final status has not yet 
been determined.” This rule, as Valentine’s book 
reveals, did not describe reality, as persons who 
might meet any of the classifications, including 
POWs, could be and routinely were detained 
indefinitely and tortured during that detention.

The directive declared that “[s]uch persons are 
entitled to humane treatment in accordance with 
the provisions of the Geneva Conventions” as if 
the declaration brought the U.S. fully into 
compliance with Geneva and made further 
compliance unnecessary. Those who were not 
regular North Vietnamese or Vietcong soldiers­in 
other words, “irregulars”­were accorded POW 
status, if caught in combat and not engaging in 
terrorism, sabotage, or spying. Such irregulars 
included: guerrillas, self-defense forces, and secret self-defense forces.

Although the MACV directive does not so state, 
evidently those who were not obviously POWs were 
given a status determination hearing. According 
to Elsea, “those not treated as POWs were treated 
as civil defendants, and were accorded the 
substantive and procedural protections” of 
Geneva. Again, however, we know that many of 
these civilian defendants languished interminably in the An Tri prisons.

In determining status, “[e]xploitation of human 
sources, documents, materiel [sic], and other 
intelligence requirements incident to the 
effective screening and classification of 
detainees will normally be accomplished by 
intelligence personnel of the participating 
elements” and “[m]aximum use must be made of 
interrogators and interpreters to conduct initial 
screening and segregation at the lowest possible level.”

These threshold procedures appear to resemble 
those used by the Bush Administration since 
Rasul. The MACV directive notes that the 
“detaining unit” was to “insure that the proper 
documentation [was] initiated and maintained on 
every individual” and that “data reflect 
circumstances of capture and whether documents 
o[r] weapons were found on the detainee.” The 
hearings were clearly one-sided, weighted in 
favor of detention, and assumed accuracy of 
intelligence and the detaining unit’s 
documentation. No provision appears to have been 
made at these screening hearings for the detainee 
to present evidence in his favor, for legal 
representation, proper standards of proof, or 
other traditional due process protections.

Combatants in War on Terror

Guantanamo screening procedures came about, like 
those in Vietnam, only after public clamor and 
two Supreme Court decisions: Hamdi and Rasul. 
But, despite these two rulings, government 
attorneys continued to argue that although 
detainees may have a right to some due process in 
challenging their detentions, all the process 
that was due was “a right to appear before a 
panel set up entirely within the military, run by 
officers, under rules that allow the detainee no 
lawyer and no assurance of access to all the 
facts about their capture and detention.” The 
combatant status review tribunals (“CSRTs”) were 
purportedly erected to satisfy the Supreme 
Court’s dictates, but Amnesty International 
expressed its opinion that “the CSRT process may 
have been devised as an attempt by the government 
to narrow the scope of any judicial review.”

Senator Patrick Leahy noted that the 
Administration established the CSRTs “only after 
being rebuked by the Supreme Court in Rasul v. 
Bush,” and the procedures only “affirmed the 
‘enemy combatant’ status of the Guantanamo 
detainees based on secret evidence to which the 
detainees were denied access, raising serious 
questions about the fairness of the process.”
Although news reports revealed a massive lack of 
adequate procedures and guidance for 
interrogations at Abu Ghraib, little has been 
reported about the screening, detention, or trial 
procedures. Some of the procedures used in the 
Iraq war theater are detailed in documents 
obtained from the Department of Defense by the 
American Civil Liberties Union via a Freedom of Information Act request.

According to one undated (ca. 2003-04) document 
titled “Detainee Process,” if a detainee was 
determined (by what method, the documents do not 
say) to have high “intelligence value,” he would 
immediately be transferred to the “Division 
Central Collection Point” in Tikrit, Iraq. If he 
was determined to have no intelligence value 
“from and/or through interrogations,” he would be 
“tried for the violations listed,” apparently at 
the regional “collection point.” Proceedings were 
conducted “based on a summary courts martial 
model.” If the detainee had no intelligence value 
and was not found to have committed any other 
violations, he was released. Reasons for delay in 
a detainees transfer or release was generally 
missing or incomplete information.
A flow chart for “Detainee Processing” at Tikrit, 
Iraq, lists the steps to be followed: individual 
detained, capturing unit complete paperwork, 
detainee arrives at one of the regional 
collection point detention facilities, detainee 
is screened “by CI,” packet is completed. If a 
detainee had “intel value” or otherwise warranted 
further detention, he was sent to the Division 
Central Collection Point in Tikrit.

At Tikrit, detainee screening was conducted only 
at “three designated interrogation tents.” One 
side was to be kept open at all times unless 
there was a military police officer inside.

One officer explained to superiors that detainees 
are most susceptible during the first few hours after capture:

The prisoners are captured by Soldiers, taken 
from their familiar surroundings, blindfolded and 
put into a truck and brought to this place (Abu 
Ghraib); and then they are pushed down a hall 
with guards barking orders and thrown into a 
cell, naked; and that not knowing what was going 
to happen or what the guards might do caused them extreme fear.

Detainee categories in the Iraq theatre are very 
similar to those in Vietnam. Category I is high 
level enemy prisoners of war (“EPWs”), detained 
persons, civilian internees, including “black 
list individuals,” suspected war criminals, and 
“violators of UN Resolutions whose broad or 
specific knowledge makes it necessary for them to 
be questioned without delay by specially 
qualified interrogators or debriefers.” Category 
IA are mid-level EPWs, detained persons, civilian internees, including:

[G]rey list individuals whose broad or specific 
knowledge of regional and national level Ba’ath 
Party and Fedayeen activities, leadership and 
cell structure, identities of members, 
recruiting, intelligence capabilities, financing, 
training, planning, communications and/or 
locations, makes it necessary for them to be 
questioned without delay by operationally focused 
interrogators. Also includes persons suspected of 
affiliation with terrorist organizations, foreign 
intelligence services and foreign fighters.

Both Category A and A1 detainees are transferred 
immediately to the Task Force Central Collection 
Point in Tikrit. Category A1 detainees are 
processed and thereafter transferred to the 
Coalition Interrogation Facility at Baghdad Airport.

According to one army investigation: “At first, 
at Abu Ghraib and elsewhere in Iraq, the handling 
of detainees, appropriately documenting their 
capture, and identifying and accounting for them, 
were all dysfunctional processes, using little or 
no automation tools.” The senior investigating 
officer, Anthony Jones, noted, “When policies, 
SOPs [standard operating procedures], or doctrine 
were available, Soldiers [sic] were 
inconsistently following them. In addition, in 
some units, training on standard procedures or 
mission tasks was inadequate.” However, Jones 
added, “In my assessment, I do not believe that 
multiple policies resulted in the violent or 
sexual abuses discovered at Abu Ghraib. However, 
confusion over policies contributed to some of 
the non-violent and non-sexual abuses.”

Finally, Jones pointed out several additional 
pertinent elements of the Abu Ghraib detention 
situation. First were the detainees that “were 
accepted from other agencies and services without 
proper in-processing, accountability, and 
documentation,” who were referred to as “ghost 
detainees.” Second, Jones remarked about the 
“systemic lack of accountability for interrogator 
actions and detainees [that] plagued detainee 
operations in Abu Ghraib.” Finally, Jones noted:

Although the FBI, JTF-121, Criminal Investigative 
Task Force, [Iraq Survey Group], and the [Central 
Intelligence Agency] (CIA) were all present at 
Abu Ghraib, the acronym “Other Government Agency” 
(OGA) referred almost exclusively to the CIA. CIA 
detention and interrogation practices led to a 
loss of accountability, abuse, reduced 
interagency cooperation, and an unhealthy 
mystique that further poisoned the atmosphere at Abu Ghraib.

Most importantly, “local CIA officers convinced 
military leaders that they should be allowed to 
operate outside the established local rules and procedures.”

It is doubtful whether CSRTs have been applied to 
citizen detainees, but as of July 2005, they were 
completed at Guantanamo for all detainees.

The CSRTs are administrative rather than 
adversarial, but each detainee may present 
“‘reasonably available’ evidence and witnesses to 
a panel of three commissioned officers to try to 
demonstrate that the detainee does not meet the criteria to be designated.”

“CSRT procedures are modeled on the procedures of 
Army Regulation (AR) 190-8.” The AR divides 
captives into four classes: enemy prisoners of 
war, retained personnel (chaplains, medical 
personnel, Red Cross), civilian internees, and 
other detainees. Under AR, the preliminary 
determination of status is made on the 
battlefield; those made under CSRT procedures clearly are not.

AR provides that the reviewing panel decides by a 
majority vote on the preponderance of evidence 
whether an individual should be detained.
According to Human Rights First, the “tribunals 
that will conduct detainees’ status hearings are 
not neutral” and fail to satisfy the Supreme 
Court’s rulings in either Rasul or Hamdi. Human Rights First notes:

While tribunal officers are to have had no 
previous connection with the apprehension, 
detention, or interrogation of the detainees, 
this condition is no guarantee of neutrality. A 
finding in favor of the detainee would require 
the officer to challenge determinations made by 
his or her entire chain of command, including the 
President, who, in an “order” issued February 7, 
2002, “determine[d] that the Taliban detainees 
are unlawful combatants and, therefore, do not 
qualify as prisoners of war . . . [and likewise] 
note[d] that . . . al-Qaida detainees also do not 
qualify as prisoner[s] of war.” Moreover, the 
tribunals may only affirm the original “enemy 
combatant” designation, or determination, and 
they do not have the option to declare a detainee 
a “lawful combatant/prisoner of war.”

Human Rights First claims that the status 
hearings “do not even measure up to the military 
regulation they claim to mirror,” which 
established, by contrast, “no institutional 
interest . . . in the outcome of any particular 
individual’s hearing” even in battlefield hearings.

The CSRTs are not bound by rules of evidence that 
would apply in federal court, or even in a court 
martial. The government’s evidence is presumed to 
be “genuine and accurate.” The government is 
required to present all of its relevant evidence. 
The detainee’s “personal representative,” who is 
assigned to him, may view classified information 
but does not act as legal counsel, since the 
representative need not possess any professional 
training and communications are not 
confidential­a fact of which detainees are apparently not informed.

Human Rights First points out that the fact that 
if status hearings had been “held at the time of 
capture [and] determined that an individual was a 
noncombatant, his deportation to Guantanamo . . . 
would have been a grave breach of the [Geneva] Convention.”

All in all, the War on Terror screening 
procedures share many, if not most, of the 
features of the Vietnam screenings; these can be 
most easily summed up as violating Articles 3 and 
4 of the Third Geneva Convention. The rationales 
for the structure of these screening procedures 
also seems to be similar: that fighting a new and 
vicious enemy who does not follow the laws of war 
himself excuses us from following those laws 
ourselves, in particular the so-called “Geneva 
law” that emphasizes human rights and responsibilities.

An Tri Tribunal Procedures

A contemporary Department of State handbook of 
Vietnamese national security laws sets forth the 
An Tri procedures in detail.  The An Tri 
detention system permitted the rounding up of 
“Civilian Security Suspects”­those who were 
thought to be a “[d]anger to National 
Security”­on the basis of nothing more than 
“simply . . . the word of an anonymous informer.” 
The U.S. puppet Vietnamese “Security Committee” 
could “take action on a case even though a 
criminal act cannot be proven.” Members of 
“infrastructure, various associations, and 
political cadre, draft evaders, deserters, and 
those suspected of having violated the laws of 
the [Republic of Vietnam] will normally be 
classified as civil defendants and not [prisoners 
of war].” The procedures for administrative 
detention were “far less exacting and technical 
than those of the [regular Vietnamese] courts.”

Similar to designated war on terror “unlawful 
enemy combatant” detainees, “Civilian Security 
Suspects” could be detained initially for a 
maximum period of two years, with the potential 
of renewed periods upon review. Proceedings were 
closed to the public; the detainee had no right 
to counsel or right to appear personally at his 
hearing. Civilian security offenders were tried 
by Special Courts, Security Committees or 
Military Courts, “in accordance with the 
emergency Decrees and Decree-Laws which define 
security offenses and specific the forum.”

The rules of evidence were “relatively lenient,” 
although an accused, in theory if not in 
practice, could “rebut such evidence and . . . 
demand that witnesses whose statements are in the 
dossier appear personally in court.”  Evidence 
had apparently merely to be “sufficient” to 
“support the arrest, custody, trial and 
conviction of the suspect,” but classified 
information could be “[brought] to the attention 
of the court . . . [but] not be incorporated in 
the official record of the case.” Confessions 
were accepted in evidence, “signed by the 
accused,” and “a substantial number of 
convictions” were “obtained through confessions.”

The procedures in a fourth venue, Military Field 
Courts­whose “operation . . . received 
considerable public attention due to the 
sensational nature of some of the [Vietcong] 
cases tried there and the gravity of the 
penalties involved”­were “considerably simplified 
and abbreviated, particularly as regards the 
pre-trial investigations.” The decisions of such 
courts were final, without any right of 
appeal.  The compiler of these statistics noted 
that the “laws and procedures for dealing with 
security offenders are far from perfect and 
eventually must be replaced” but “for the 
present, the emphasis must continue to be on winning the war.”

The Bush Military Commission Procedures

While the Military Order and the Military 
Commissions Order provide for trials of enemy 
combatants, nowhere do these orders require that 
every detainee be tried, and, in fact, as we have 
seen, the Administration has made it clear that 
it does not intend to try most detainees, 
emphasizing that the purpose of these detentions 
is to keep people off the battlefield. The 
procedures established for military tribunals, 
however, presently contain the greatest degree of 
procedure most detainees will be granted. They 
also contain a similar mishmash of civil and war 
“crimes” as the An Tri trial procedures

The lower standards of proof, expanded secrecy 
provisions, denial of judicial review, and the 
lack of independence from the executive branch go 
hand-in-hand with and form part of the 
infrastructure for administrative detentions.

The Military Order, in anticipation of the MCO, 
stipulates a “full and fair trial” but, as the 
Congressional Research Service notes, it 
“contains few specific safeguards that appear to 
address the issue of impartiality.” The military 
commission panel sits “as triers of both fact and 
law.” Evidence may be admitted if, in the opinion 
of the presiding officer, it has “probative value to a reasonable person.”

An individual subject to the order may be tried 
only by the commission and “shall not be 
privileged to seek any remedy or maintain any 
proceeding, directly or indirectly, or to have 
any such remedy or proceeding sought on the 
individual’s behalf, in any court of the United 
States, any court of any foreign nation, or any 
international tribunal.” Jennifer Elsea notes 
that “[t]he President appears to have complete 
control over the proceedings.” She continues:

He or his designee decide which charges to press, 
select the members of the panel, the prosecution 
and the defense counsel, select the members of 
the review panel, and approve and implement the 
final outcome. The procedural rules are entirely 
under the control of the President or his 
designees, who write them, interpret them, 
enforce them, and may amend them at any time.

Procedural safeguards include the right to be 
informed of charges sufficiently in advance of 
trial to prepare for defense, presumption of 
innocence, guilt beyond a reasonable doubt, open 
hearings (with exceptions), right to counsel 
(with restrictions, including monitoring of 
communications and supervision), and right to 
discovery to the extent necessary and reasonably 
available, subject to secrecy determinations. 
There appear to be no exclusionary rules for 
admissibility of evidence and no authentication 
requirements for depositions. The main concern 
appears to be the need for secrecy rather than fairness of process.

According to Judge Evan J. Wallach, Bush’s 
Military Order “and subsequent statements by the 
President, Vice President, Attorney General, 
Secretary of Defense, and the White House Counsel 
made it clear that the tribunals were intended to 
follow procedural and evidentiary rules similar 
to those used to try spies and war criminals 
during and after the Second World War,” which 
were  applied in World War Two and in the 
post-war tribunals [were] repeatedly used to 
admit evidence of a quality or obtained in a 
manner which would make it inadmissible under the 
rules of evidence in both courts of the United 
States or courts martial conducted by the armed forces of the United States.

Wallach points out further that: “None of the 
screening processes applied to the Guantanamo 
detainees, either pre-shipment from Afghanistan, 
during incarceration, or following the Supreme 
Court’s mandate in Hamdi, meets the requisites of 
Article 5” of the Third Geneva Convention relating to prisoners of war.

Indeed, the MCO procedures were considered 
inadequate by many, including human rights 
organizations and even by some of the military 
officers assigned to prosecute Guantanamo 
suspects. Three retired military officers, each 
formerly either a Judge Advocate General or 
senior legal advisor for a branch of the United 
States military, jointly filed an amicus curiae 
brief in the consolidated case of Rasul v. Bush, 
stating: “The government should not be permitted, 
through Executive fiat, to imprison persons 
indefinitely when no charges have been brought 
against them and the prisoners are barred from 
all access to courts and other tribunals to determine their status.”

Several military defense lawyers filed challenges 
to the impartiality of the commission judges, 
three of whom were subsequently removed. The 
lawyers also filed in federal court challenging 
the military tribunals. The suit, Hamdan v. 
Rumsfeld, resulted in a November 2004 District of 
Columbia Circuit Court decision declaring 
that  unless and until the rules for Military 
Commissions (Department of Defense Military 
Commission Order No. 1) are amended so that they 
are consistent with and not contrary to Uniform 
Code of Military Justice Article 39, 10 U.S.C. 
839, petitioner may not be tried by Military 
Commission for the offenses with which he is 
charged [and] unless and until a competent 
tribunal determines that petitioner is not 
entitled to the protections afforded 
prisoners-of-war under Article 4 of the Geneva 
Convention Relative to the Treatment of Prisoners 
of War of August 12, 1949, he may not be tried by 
Military Commission for the offenses with which he is charged.

However, on July 15, 2005, the Court of Appeals 
for the D.C. Circuit overturned the D.C. District 
Court decision, ruling that Hamdan has no 
individual right to assert a Geneva violation and 
that the CSRT, which determined that Hamdan is an 
enemy combatant subject to indefinite detention, 
satisfies Geneva’s hearing requirement. Hamdan 
has appealed to the Supreme Court. Neil Katyal, Hamdan’s attorney, writes:

The court of appeals, by rejecting longstanding 
constitutional, international law, and statutory 
constraints on military commissions, has given 
the President that power in tribunals that impose 
life imprisonment and death. Its decision vests 
the President with the ability to circumvent the 
federal courts and time-tested limits on the Executive.

He notes that: “This case challenges (1) a 
commission without explicit Congressional 
authorization, (2) in a place far removed from 
hostilities, (3) to try an offense unknown to the 
laws of war, (4) under procedures that flout 
basic tenets of military justice, (5) against a 
civilian who contests his unlawful combatancy.” 
And: “The essence of the court of appeals’ 
contrary position is that while Petitioner has no 
rights under the Constitution, treaties, common 
law, and statutes, he is subject to the penalties and pains of each.”

On a somewhat analogous question, on October 5, 
2005, the Senate voted 90-9 in favor of an 
anti-torture statute that would require all 
interrogations to comply with the Uniform Code of 
Military Justice. The D.C. Circuit Court of 
Appeals did not require that the Military 
Tribunals adhere to the Uniform Code, as the D.C. 
Circuit Court itself had, but Congress defied the 
White House’s threatened veto to pass the 
anti-torture law that requires such adherence.

The Bush detention scheme, like An-Tri, is 
designed to screen and detain without a regular 
trial those who are merely suspected of being 
dangerous to national security. Again like 
An-Tri, it was set up with the primary purpose of 
gathering intelligence, or as White House Counsel 
Alberto Gonzales said, with “a high premium on . 
. . the ability to quickly obtain information from captured terrorists.”

The Law of War & Determination of Detainee Status

Where the U.S. eventually acknowledged residual 
responsibility under the Geneva Conventions for 
the Phoenix detentions in Vietnam (originally 
having denied all responsibility, saying it was 
not in charge), the Bush Administration, while 
stating it would follow the spirit of Geneva, 
from the start claimed that Geneva does not apply 
to most of the detainees, and in any case, that 
no tribunal other than its own executive decision 
was needed to determine a detainee’s status.

Bush refused to acknowledge the application of 
Geneva to terrorist suspects, but White House 
counsel Alberto Gonzales advised him that “even 
if [the Geneva Convention] is not applicable, we 
can still bring war crimes charges against anyone 
who mistreats U.S. personnel.” This sort of 
incongruity calls for judicial and congressional scrutiny.

There are two branches of the laws of war: the 
older one is sometimes called the “Hague law,” 
after the Hague Conventions of 1899 and 1907, 
which prescribes the rules of engagement during 
combat and is based on the key principles of 
military necessity and proportionality, and the 
newer “Geneva law,” after the Geneva Conventions 
of 1929 and 1949, which emphasizes human rights 
and responsibilities, including the humane treatment of prisoners.

The law of war is based on the idea of 
reciprocity­you treat your enemies the way you 
want them to treat you. Derogation from the rules 
by one party, however, does not excuse breaches 
by another. “Were this not the case, any 
deviation from the letter of the law could be 
invoked to justify wholesale abandonment of the 
law of war, causing the conflict to degenerate 
into the kind of barbarity the law of war aims to mitigate.”

Further, parties to an armed conflict retain the 
same rights and obligations without regard to 
whether they initiated the hostilities or whether 
their conduct is justifiable under international law.

Thus, President Bush could not excuse the United 
States from honoring (or applying) the Geneva 
Conventions or other international treaties 
applicable in the war on terror on the grounds 
that the 9/11 attacks were unprovoked or violated the laws of war.

Intentional Violations of the Geneva Conventions

One of the darkest truths about both the An Tri 
detentions and the current administrative 
detentions of unlawful enemy combatants is that 
not only did both violate international and 
domestic laws, but instead that in both cases the 
U.S. government officials clearly did so intentionally.

With respect to Bush Administration policies, two 
respected law professors, both of whom served in 
the military, independently concluded that the 
January 2002 memo by White House Counsel Alberto 
R. Gonzales and subsequent presidential decisions 
and authorizations are “evidence of the 
initiation of a Common Plan to violate the 1949 Geneva Conventions.”

The Phoenix Program was from the start an 
unlawful program. It began as a CIA covert 
operation, ultimately evolving into a program of 
detentions of dangerous persons, purportedly run 
by the Vietnamese, but in fact always managed by 
Americans. Eventually, those in charge­an 
“old-boy network, a group of guys at highest 
level . . . who thought they were Lawrence of 
Arabia”­were required to answer to Congress and 
conform the program more closely to Geneva 
requirements. But there was never a full 
accounting of American transgressions against the Vietnamese.

Similarly, Bush administration rationales and 
justifications for violating established, 
time-tested international protections are the 
same as those used by American officials during 
Vietnam. Indeed, what one Vietnamese scholar 
presciently wrote in 1982 could be echoed today: 
“American politicians have not yet changed their 
policy . . . . Almost the same people [are 
applying] the same policy with the same principles and the same spirit.”

As noted earlier, American officials in Vietnam 
decided that Geneva did not apply to security 
detainees. Their argument that either the 
individuals were not “protected persons” under 
Article 4 of the Fourth Geneva Convention (for 
protection of civilians) or that Article 3 
(common to all the four Geneva Conventions, 
mandating humanitarian treatment to all persons, 
even if not protected persons, and forbidding 
“‘the passing of sentences and the carrying out 
of executions without previous judgment 
pronounced by a regularly constituted court, 
affording all the judicial guarantees which are 
recognized as indispensable by civilized 
peoples’”) did not apply to those who were not 
charged with a crime and did “not prohibit a 
state from interning civilians or subjecting them 
to emergency detention when such measures are 
necessary for the security or safety of the 
state,” is ominously similar to the 
reasoning  applied by the Bush Administration.

Based on the argument that the President has the 
constitutional authority to suspend treaties in 
certain circumstances or to interpret them to 
mean that they do not apply to certain persons, 
President Bush initially decreed that the Geneva 
Conventions did not apply to al Qaeda (because 
they were not party to the Conventions) or the 
Taliban (because they were unlawful enemy 
combatants not qualifying as prisoners of war).

Judge Wallach notes, “it [is] clear that by the 
end of January [2002], at least, consideration 
was being given to conduct which might violate 
[the Third Geneva Convention’s] strictures 
regarding the detention and interrogation of 
prisoners of war.” Former White House Counsel 
Alberto Gonzales ­now Attorney General, with all 
the powers that position entails­advised the 
President on January 25, 2002 that if the 
President determined that Geneva did not apply, 
his decision would render “obsolete Geneva’s 
strict limitations on questioning of enemy 
prisoners,” thus “eliminat[ing] any argument 
regarding the need for case-by-case 
determinations of POW status,” and insulating the 
Administration against domestic prosecution for war crimes.

Wallach points out: “Any such approach is 
incompatible with the core concepts of rule of 
law, coequal branches of government and 
separation of powers,” “would fly in the face of 
every concept of rule of law and regulation of 
armed conflict developed over the past two 
hundred years . . . [and] would also be a direct 
and criminal violation of the standards for 
minimal conflict in war time developed at 
Nuremburg.” Wallach also notes, these violations 
could constitute grave breaches of Geneva, which 
would constitute a violation of the War Crimes Act of 1996.

The An-Tri detentions arose out of a desperate 
climate. In Vietnam, American involvement began 
in the early 1950s, with American soldiers 
fighting alongside the French. By 1952, American 
advisers began training Vietnamese units. By 
1954, the United States had installed Ngo Dinh 
Diem, and the CIA was operating a brutal 
psychological warfare program which later evolved 
and was incorporated into Phoenix. Arrests and 
executions of Vietnamese Communists began in 1956 
with the notorious Denunciation campaign under 
Diem. “The campaign was managed by security 
committees, which were chaired by CIA advised 
security officers who had authority to arrest, 
confiscate land from, and summarily execute Communists.”
A State of National Emergency was declared by the 
Vietnamese puppet government in August 1964 and a 
State of War in June 1965. A 1972 memo by Ray A. 
Meyer, an American legal adviser in Vietnam, 
making recommendations for An-Tri reforms, noted: 
“It must be recognized that, in Vietnam . . . 
preventive detention is a substitute for killing people.”

But even when “reforms” of the An-Tri system were 
considered, the U.S. embassy decided to defer 
making them because of “intractable CIA internal 
security considerations . . .” and the system was 
then permanently solidified into “a system of 
indeterminate terms of detention.” Although many 
of Meyer’s recommendations (hearings open to the 
public, gradual phasing out of An-Tri), were not 
adopted, the indefinite detention program was retained.

These facts illustrate the original, albeit ex 
post facto, rationale for the indefinite 
detentions: an alternative to battlefield 
killing, but it was always a means of gaining and 
exploiting intelligence. This rationale has now 
been extended to the global “War on Terror,” 
justifying indefinite detentions of any terrorist 
suspect, without trial, without any sort of due 
process or habeas corpus protections, and, prior 
to the Supreme Court decision in Hamdi, without 
even a legitimate status determination.

The dilemma now, as during Vietnam, is genuine. 
How to identify and what to do with persons who 
plan to sabotage and murder civilians? Is this a 
war or is it an insurgency? What do you do when 
civilians may be the enemy? Outright 
assassination of masses of suspect civilians is 
not only morally repugnant and wrong, but against 
the laws of war. But, then, what do you do when 
the insurgency is civilian based? The easy answer 
is: you “administratively” (but not quite legally) detain.

But indefinite administrative detentions are not 
the answer, since the reader may recall that the 
Phoenix Program was not only about detentions­and 
this is the real crux of the problem with 
administrative detention programs­Phoenix was in 
fact originally an assassination program, so that 
the culture of what came to be known as guerilla 
or “unconventional warfare,” bled into the 
detention program, leading to egregious abuses, 
torture and killing of detainees, exactly what 
has now been discovered in our treatment of 
prisoners at Abu Ghraib and other combatant detention centers.

In both cases the justification was identical: 
these are dangerous terrorists who want to kill 
us; therefore, the humane alternative to killing 
them is to indefinitely detain them. The 
justification makes sense until one realizes that 
without an adequate screening process, there is 
no way to tell who is and who is not a dangerous 
terrorist. American governments and presidents 
have relied for centuries on intelligence to make 
such decisions – and that is the underlying basis 
for making such determinations up to now: i.e., 
that the President has the authority to determine 
who is and who is not a dangerous terrorist 
because the President has access to intelligence. 
However, unquestioning reliance on the President 
has throughout history been repeatedly shown to 
have been misplaced. Intelligence is often based 
on hearsay, innuendo, and rumor. It is therefore 
problematic to rely exclusively on intelligence 
as the means of determining who is dangerous and who is not.

How Did We Get Here?

Although Vietnam may be and often is seen as a 
shameful episode in our history, it is clear that 
we are now repeating that history. Yale Law 
Professor Harold H. Koh wrote in 1990 about the Iran-Contra Affair:

“If the Iran-contra committees had looked past 
Watergate to the Vietnam era, they would have 
seen that the Iran-contra affair was only the tip 
of a much larger iceberg that crystallized during 
the Vietnam War. All of the 
congressional-executive struggles that surrounded 
the affair merely replicated battles that 
transpired during that earlier period. That 
history should have repeated itself across so 
many spheres of foreign affairs, even after 
Congress has passed so many statutes to avoid 
repetition of the Vietnam-era evasions, suggests 
that the Iran-contra affair exposed systemic, 
rather than localized, problems in the American foreign-policy process.”

According to Koh, executive seizure of the 
initiative in foreign affairs can be said to 
arise from the fact that under our Constitution, 
the president may more easily do so than may 
Congress. Koh notes that, beginning with 
President Franklin Roosevelt’s initiation of 
“extrovert” foreign policy, “[a]n entire 
generation of Americans grew up and came to power 
believing in the wisdom of the muscular 
presidential leadership of foreign policy.”

“Yet,” Koh notes, “Vietnam caused an entire 
generation to rethink its attitude toward foreign 
policy. National elites became less willing to 
intervene to defend other nations and to bear the 
costs of world leadership.” “Why, then, have 
presidential initiatives not only continued, but 
appeared to accelerate, during the post-Vietnam 
era?” Koh believes that “America’s declining role 
as world hegemony has forced changes in the 
postwar structure of international institutions, 
which have in turn stimulated further presidential initiatives.”

A shift has also taken place in the public mind. 
“The rise of new and unanticipated problems not 
subject to the control of any nation-state, such 
as global terrorism and the debt crisis, have 
increasingly forced the United States into a 
reactive international posture. Given the 
president’s superior institutional capacity to 
initiate governmental action, the burden of 
generating reactive responses to external 
challenges has almost invariably fallen on him.” 
According to Koh, “[t]he same public opinion that 
has empowered the plebiscitary president has 
simultaneously subjected him to almost 
irresistible pressures to act quickly in times of 
real or imagined crisis.” Koh attributed what he 
saw in 1990 as “the recent wave of treaty 
breaking and bending” as a reflection of a 
“reactive presidential role in leading both 
America’s flight from international organizations 
and its movement toward alternative mechanisms of multilateral cooperation.”

Koh cites “President Reagan’s use of short-term 
military strikes and emergency economic powers 
(to respond to terrorism); longer-term military 
commitments in Lebanon and the Persian Gulf (to 
respond to requests for peacekeeping); arms sales 
(to respond to military tensions in the Middle 
East); and covert actions (to effectuate 
neo-containment policies in Central America and 
Angola) [as reflections of] the modern American 
perception that crisis situations uniquely demand a presidential response.”

Whatever the reasons for “presidential 
initiative,” it is clear that such initiative is 
at the bottom of the abuses found behind the 
present detentions of combatants. It is clear 
that, whether or not we should require presidents 
rather than Congress to be responsible for 
creating and carrying out foreign policy, the 
President now is responsible for those things and 
thus cannot claim both to lead the nation and 
simultaneously evade responsibility for the 
egregious acts of subordinates who follow his 
policies. Having issued orders that intentionally 
evade and violate the central international laws 
relating to detention and status determination of 
belligerents, having sanctioned indefinite 
detentions and interrogations that violate those 
same laws, which ultimately led to torture and 
murder committed by soldiers and military 
intelligence personnel, the President and his 
advisers are ultimately responsible for the 
consequences of those violations. They may not 
evade such responsibility merely by stating that 
laws do not apply, or as Charles B. Gittings of 
the Project to Enforce the Geneva Conventions put 
it recently in an amicus curiae brief in the 
Guantanamo Bay Detainee Cases, they may not 
“commit war crimes with impunity [simply] because 
they are responsible for enforcing the laws.”

We have reached a critical point in our history, 
a point which has ramifications as far-reaching 
as the Civil War or World War II.

This is a considerably shorted version of an 
article (without the footnotes) by Jennifer van 
Bergen and Douglas Valentine in the Case Western 
Reserve Journal of Internatiomal Law, Vol. 37, 
nos 2 and 3, 2006.  The original, with footnotes 
and appendices, may be viewed at: 

Jennifer Van Bergen, a journalist with a law 
degree, is the author of 
(Common Courage Press, 2004) and 
for Writers: Using the Power of Your Subconscious 
(Michael Weise Productions, 2007). She can be 
reached at <mailto:jvbxyz at earthlink.net>jvbxyz at earthlink.net.

Douglas Valentine is the author of four books, 
including The Phoneix Program, which are 
available at his websites 

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