Should the US apply the Geneva Conventions to prisoners detained in Guantanamo Bay?

General Reference (not clearly pro or con)
The Geneva Convention Relative to the Treatment of Prisoners of War of Aug. 12, 1949 stated:

"Article 13
Prisoners of war must at all times be humanely treated...Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Article 17
Every prisoner of bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind."

Aug. 12, 1949 - Geneva Convention (135 KB)  

PRO (yes)

William Howard Taft IV, JD, former Chief Legal Adviser of US State Department, in a Jan. 11, 2002 memo to Deputy Assistant US Attorney General John Yoo, wrote:

"In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions. I have no doubt we can do so here, where a relative handful of persons is involved."

Jan. 11, 2002 - William Howard Taft, IV, JD 

Mary Robinson, LLM, MA, former United Nations High Commissioner for Human Rights, in Jan. 16, 2002 remarks to the press, said:

"All persons detained in this context (Taliban and al Qaeda prisoners held at Guantanamo) are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949."

Jan. 16, 2002 - Mary Robinson, LLM, MA 

Javier Solana, PhD, Foreign Policy Chief of the European Union, in a Jan. 23, 2002 interview with Spanish State television, said:

"Treatment of people like this [detainees in Guantanamo] should be as laid down by the international conventions which, for Europeans, are part of international law. The Geneva Convention should be applied to all those arrested in similar circumstances."

Jan. 23, 2002 - Javier Solana, PhD 

Colin Powell, MBA, US Secretary of State at the time of the quote, wrote a Jan. 29, 2002 memo to the Counsel of the President regarding not applying the Geneva Convention to the conflict in Afghanistan:

"It will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general…It has a high cost in terms of negative international reaction."

Jan. 29, 2002 - Colin Powell, MBA 

In Hamdan v. Rumsfeld, the US Supreme Court wrote in its June 29, 2006 verdict:

"We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. Four of us also conclude…that the offense with which Hamdan has been charged is not an 'offens[e] that by...the law of war may be tried by military commissions.'"

June 29, 2006 - Hamdan v. Rumsfeld Supreme Court (1.31 MB)  

CON (no)

John Yoo, JD, Former Deputy Assistant US Attorney General, in a Jan. 9, 2002 memo to William J. Haynes II, General Counsel of the Department of Defense, wrote:

"We conclude that these treaties (Geneva Conventions) do not protect members of al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that these treaties do not apply to the Taliban militia. The nature of the conflict precludes application of common Article 3 of the Geneva Conventions. Al Qaeda is not covered by common Article 3, because the current conflict is not covered by the Geneva Conventions."

Jan. 9, 2002 - John Yoo, JD 

Donald Rumsfeld, former Secretary of Defense, in a Feb. 8, 2002 Department of Defense press briefing, stated:

"The President has…now determined that the Geneva Convention does apply to the conflict with the Taliban in Afghanistan. It does not apply to the conflict with al Qaeda, whether in Afghanistan or elsewhere. He also determined that under the Geneva Convention, Taliban detainees do not meet the criteria for prisoner of war status. When the Geneva Convention was signed in the mid-20th century, it was crafted by sovereign states to deal with conflicts between sovereign states. Today the war on terrorism, in which our country was attacked by and is defending itself against terrorist networks that operate in dozens of countries, was not contemplated by the framers of the convention."

Feb. 8, 2002 - Donald Rumsfeld 

In Hamdan v. Rumsfeld, the US Court of Appeals for the District of Columbia Circuit (DC District Court), wrote in its July 15, 2005 ruling in the case:

"We...hold that the 1949 Geneva Convention does not confer upon Hamdan a right to enforce its provisions in court. Even if the 1949 Geneva Convention could be enforced in court, this would not assist Hamdan. One problem for Hamdan is that he does not fit the Article 4 definition of a 'prisoner of war' entitled to the protection of the Convention. He does not purport to be a member of a group who displayed 'a fixed distinctive sign recognizable at a distance' and who conducted 'their operations in accordance with the laws and customs of war.'"

July 15, 2005 - Donald Rumsfeld 

The Military Commissions Act of 2006, passed by Congress on Jan. 3, 2006 and signed into law by President Bush on Oct. 17, 2006, stated:

''Military commissions…shall not have jurisdiction over lawful enemy combatant. Courts-martial…shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.

A finding…that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights."

Jan. 3, 2006 - The Military Commissions Act of 2006 (130 KB)