Rewriting the Laws of War for a New Enemy By Robert J. Delahunty and John C. Yoo, The Los Angeles Times February 1, 2005 When the Senate considers Alberto R. Gonzales' nomination for attorney general this week, his critics will repeat the accusation that he opened the door to the abuse of Al Qaeda, Afghan and Iraqi prisoners. As Justice Department attorneys in January 2002, we wrote the memos advising that the Geneva Convention on prisoners of war did not apply to the war against Al Qaeda, and that the Taliban lost POW privileges by violating the laws of war. Later that month, Gonzales similarly advised (and President Bush ordered) that terrorists and fighters captured in Afghanistan receive humane treatment, but not legal status as POWs. "Human rights" advocates have resorted to hyperbole and distortion to attack the administration's policy. One writer on this page even went so far as to compare it to Nazi atrocities. Such absurd claims betray the real weaknesses in the position taken by Gonzales' critics. They obscure a basic and immediate question facing the United States: how to adapt to the decline of nation-states as the primary enemy in war. The Geneva Convention is not obsolete nor, despite his critics, did Gonzales say it was. It protects innocent civilians by restricting the use of violence to combatants, and in turn give soldiers protections for obeying the rules of war. Although enemy combatants may have killed soldiers or destroyed property, they are not treated as accused criminals. Instead, nations may detain POWs until the end of hostilities to prevent them from returning to combat. The Geneva Convention provisions make sense when war involves nation-states if, say, hostilities broke out between India and Pakistan, or China and Taiwan. But to pretend that the Geneva Convention applies to Al Qaeda, a non-state actor that targets civilians and disregards other laws of war, denies the reality of dramatic changes in the international system. Shortly after World War II, nations ratified the Geneva Convention in order to mitigate the cruelty and horror of wars between the large mechanized armies that had laid waste to Europe. Now, the main challenges to peace do not arise from the threat of conflict between large national armies, but from terrorist organizations and rogue nations. To believe that the Geneva Convention should apply jot-and-tittle to such enemies reminds us of the first generals of the Civil War, who thought that the niceties that were ideals of Napoleonic warfare could be applied to battles fought by massive armies, armed with ever more advanced weapons and aided by civilian-run mass-production factories and industry. War changes, and the laws of war must change with them. Nations have powerful incentives to comply with the laws of war contained in the Geneva Convention. A United States or a Germany will care for captured prisoners, because any ill treatment could trigger retaliation against its own soldiers. A nation will be concerned with public opinion, both to maintain popular support for its war effort and to keep its allies. Nations have leaderships that can be held accountable, either legally or politically, after the war. Nations have military and civilian bureaucracies that interpret and follow uniform standards of treatment. Unfortunately, multinational terrorist groups have joined nations on the stage of war. They operate without regard to borders and observe no distinction between combatants and civilians. Our weapons for controlling hostile states don't work well against decentralized networks of suicidal operatives, with no citizens or borders to defend. The problem of terrorist groups has been compounded by the emergence of pseudo-states. Pseudo-states often have neither the will nor the means to obey the Geneva Convention. Somalia and Afghanistan were arguably pseudo-states; Iraq under Saddam Hussein was another. Pseudo-states control areas and populations subject to personal, clan or tribal rule. A leader supported by a small clique (like Hussein and his associates from Tikrit) or a tribal faction (like the Pashtuns in Afghanistan) rule. Political institutions are weak or nonexistent. Loyalties depend on personal relationships with tribal chiefs, sheiks or warlords, rather than allegiance to the nation. Quasi-political bodies such as the Iraqi Baathist Party, the Taliban or even the Saudi royal family exercise government power. Defeat of the "national" leader or clique typically results in the complete disintegration of the regime. Multinational terrorist groups and pseudo-states pose a deep problem for treaty-based warfare. Terrorists thrive on killing civilians and flouting conventional rules of war. Leaders like Hussein and the Taliban's Mullah Mohammed Omar ignore the fates of their captured soldiers. They have nothing riding on the humane treatment of American prisoners. A treaty like the Geneva Convention makes perfect sense when it binds genuine nations that can reciprocate humane treatment of prisoners. Its existence and its benefits even argue for the kind of nation-building that uses U.S. troops and other kinds of pressures in places like Somalia, Afghanistan and Iraq; more nation-states make all of us safer. But the Geneva Convention makes little sense when applied to a terrorist group or a pseudo-state. If we must fight these kinds of enemies, we must create a new set of rules. In that important respect, the Geneva Convention will become increasingly obsolete. Rather than attempting as Gonzales' shrill critics do to deny that reality, we should be seeking to address it. Robert J. Delahunty is a law professor at St. Thomas University Law School in Minnesota. John C. Yoo, a law professor at UC Berkeley, is a visiting scholar at the American Enterprise Institute.