Vital Interests: This discussion is to provide insights about the realities and issues impacting American foreign policy and national security. You have done a lot of work on the laws of war and humanitarian law. At this point in time, how is the United States conforming to global norms?

Gary Solis: The United States is the leading light, of course. What we do sets the pattern for others to follow. If we can do something successfully, other states will do it successfully. If we do something successfully and it's bad, in terms of international law or the law of armed conflict, then that too will be followed by others. What we do is important and not only for the United States and U.S. policy, but for world policy, because what we do has ripples and echoes throughout the world.

VI: If we are setting the patterns, does that mean that the established norms, the Geneva Convention and other humanitarian laws that have been recognized in the past are now abrogated, that they are no longer seriously considered by the nations of the world because of the current American administration’s attitudes?

Gary Solis: I wouldn't put it that starkly. Not abrogated but certainly bent. Torture for example. I don't know how many “black sites” we had in different countries. We had hundreds of individuals go through black sites - that we know from the Senate Investigating Committee. There were flagrant abuses of human rights and the laws of armed conflict. Long standing national laws and International laws were abrogated, were violated. When you have things like waterboarding and rectal rehydration, you know something is wrong. When people die in these places, and there was at least one person who died from the torture that he received in these black sites, you know that something bad is going on. Yet Bush made statements that there were individuals who knew things that we had to know, the ticking time bomb argument, and for that reason we were moving them to secure locations and taking extreme measures, essentially announcing that we were engaging in enhanced interrogations, a term whose full meaning is now well known.

A poll found that 59% of the U.S. citizenry thought that the CIA torture of detainees could be justified, that if they were terrorists enhanced interrogation was okay. And yet, what did we get from it? We waterboarded Khalid Sheikh Mohammed, said to be the brains behind 9/11,183 times. 

According to the Senate Investigating Commission Report, all of the information that was gained from torturing him turned out to be bogus. That is, he made it up as he went along. As far as we know, there was no positive result, no positive outcome, no actionable intelligence resulted from this disregard of international norms. Its ineffectiveness should have clearly shown these torture methods do not work. If anyone were to say that it is effective, I would ask them to point out what specific intelligence we gained from torture through black sites, through the rectal rehydration, through waterboarding. I do not believe they can.

Of course, in 1984 the United States ratified the 1974 Convention Against Torture, and we let it go at that. Then, in 2004, Abu Ghraib came up with shocking photos of American soldiers’ abuse and torture of detainees. One result was that, in 2006, the Department of the Army, which leads all of the armed forces in matters concerning the handling of prisoners, wrote a new manual, Field Manual 2-22.3., Human Intelligence Collector Operations 

In any human intelligence collection operation, torture is clearly prohibited.  The 2006 Field Manual articulates what constitutes torture, including beatings, electric shock, waterboarding, dogs, hypothermia, summary executions, and so forth. The manual states that such acts are prohibited. They will not be permitted. Those are the guidelines that are followed in the United States military today: FM 2-22.3. 

In my opinion, we would do well to pass federal legislation which follows these guidelines. We need federal law that prohibits “black sites.” We need federal law that reflect the military prohibitions. Today there is no torture by the CIA (that we know of), or black sites.  But tomorrow, there's nothing that says it won't happen again.

VI: Is labeling groups like Al Qaeda “enemy combatants”  a factor when it comes to applying the Geneva Conventions and humanitarian law which were generally written for state actors? 

Gary Solis: Yes. That terminology has simply muddied the water. We hear all the time the term “detainee” but what is a detainee? A detainee is a person who is being detained. Well, one can say, “Yes, certainly,” but as we have seen in recent history, the term “detainee” is applied to a wide range of individuals who are in the hands of the other side. I think we need greater clarity than that. We need legislation that mandates, in non-international armed conflicts such as Afghanistan, that prisoners will not be “detainees,” they will not be “unlawful combatants,” they will be considered POWs.  In international law there's a fine distinction between being considered a POW, and being a POW, and that's reflected in the 1977 Additional Protocols at Article 44. We need to give those individuals whom we capture a status that clearly delineates what may and may not be done in regards to their housing, their behavior, and our conduct towards them.

If we were to consider them to be POWs, in accordance with the 1949 Geneva Convention III, the protections in Geneva Convention III would lay out their status in international law and what could and could not be done to them. I say this because we have proven incapable of providing basic norms of humane treatment to mere “detainees.” We have proven incapable of affording them the human rights that should apply to anyone who is in our hands. In prior non-international armed conflicts, we did this as a matter of course. For example, during the 1899-1903 US-Philippine war, anybody we captured, we just called them POWs and they were treated as POWs. In the Vietnam War we had six POW camps, and we put everybody that we captured in these camps - VC forces, including the Viet Cong, local VC and the organized VC, and the North Vietnamese Army. We put them all in the same camps and treated them all the same way. We gave them all the same food, the same housing, et cetera.

We just considered them all POWs. We didn't necessarily call them POWs, but we treated them as such. So, it clearly can be done. A key element of this change is contained in the 1949 Geneva Convention III, Article 102, which says, "POWs,” it doesn’t say “unlawful combatants,” not “detainees,” but “POWs,” shall be tried by the same courts as our own soldiers. They would be tried for similar offenses and with similar sentences - by our court-martial rules and procedures." That, of course, would have led to something different than Guantanamo.

VI: Is the problem regarding these definitions about who is a POW, who is a detainee, or who is an enemy combatant, is that those designations were not articulated by the military but rather by political entities?

Gary Solis: Exactly. The U.S. military was given definitions without guidance. What constitutes a definition of this prisoner’s designation? We didn't have the definition, we had the individual, and the new terminology was applied to him. But that designation had no legal content, it had no behavioral guidelines for the prisoner or his keepers. The people that we held? Their treatment evolved without guidelines and, of course, when you have no guidelines bad stuff is bound to happen. You have individuals – soldiers, CIA personnel, and others, who are willing to take liberties, who are willing to press the envelope, and before you know it, the envelope is expanded to something more than an envelope, and we've seen that often in recent years. Abu Ghraib is an example of that. Instead of treating them as individuals, as POWs, without guidelines as to their treatment, and without having effective prisoner oversight by senior non-commissioned officers, and by officers, their treatment was left to individuals who, in civilian life, probably couldn't have held a job at McDonald's. Although they were supposedly imposing US standards – US standards as viewed by the guards themselves – to the individuals that they were guarding. We know what an international disaster Abu Ghraib was, as a result. We've got to have more than simply undefined names like “detainee” and “unlawful combatant,” in my view.

VI: In other words, what guidance there was, was coming out of the executive Office of Legal Counsel, rather than from JAG officers or military legal departments?

Gary Solis: That's correct, even when you had communiques from the Office of Legal Counsel, we saw things like the Bybee Memo, which some listeners and readers will recognize as being a product of John Yoo's invention. One could take an entire legal course on what was wrong with the Bybee Memo: what did it allow that was disallowed by international law? How many ways did it violate US law and international law, and the Geneva Conventions? It was, in my opinion, a legal disaster, just a disastrous document, which was withdrawn a few years later, but the damage had already been done.

VI: It gave the executive branch a precedent for them to overstep and go beyond what had been considered acceptable?

Gary Solis: That's right, and you can't erase history. You can bet that somebody in a future armed conflict is going to reach back and rediscover the Bybee Memo and say, "Well, look at this! This came from the Office of Legal Counsel and the Department of Justice. How bad can it be?" Well, how bad can it be is terrible. Although it was eventually withdrawn, it's still in the ether, it's still on the Internet. It's the attitude that is represented by documents such as that, and many others that Karen Greenberg has included in her several books, that still survive to provide access, to be negative touchstones for future courses of action. What we need, in my opinion, is something that clearly prohibits these aberrant policies. I say it is federal legislation that is required. Something that mandates treatment, and something that clarifies lines of authority and responsibility. Something that provides penalties for their violation.

VI: You talk about legislation that provides real definitions and strict guidelines. How will that transfer to the military? Will this legislation allow the military to stand up to an Executive Branch and say, "No, in fact there are legislative guidelines that we are not going to ignore?"

Gary Solis: No. I don't believe so. That probably seeks better bread than is made of wheat. I think the military's position is fairly well laid out now, in the Manual I previously mentioned - FM 2-22.3 Human Intelligence Collector Operations - when it specifically prohibits those acts, activities, and operations, which too often have been carried out, in the near past, in regard to non-international armed conflicts, and in regard to those who are held in a status of less a prisoner of war. The military's position is well laid out in the field manual. I think that it is indeed the touchstone for future Federal legislation.

We already have a Convention against torture. Add to it the prohibitions which are contained in the manual that I refer to and I think we're well down the path to a reasoned approach to prisoners who are taken in non-international armed conflict. In an international armed conflict, we have the Geneva Conventions themselves, with the entirety of the Third Geneva Convention on prisoners of war. But it’s today's non-international armed conflicts for which we need better guidance. I don't think anyone can look to the military and expect them to disobey the orders of the executive unless those orders are clearly unlawful orders. What is an unlawful order? Well, it's subject to interpretation to a certain extent, but it's an order which any reasonable person would understand calls for a violation of the norms and laws of armed conflict. In cases like that, it is the duty of the soldier, Marine, sailor, airman, to not obey those orders and to seek guidance from other authority, like a judge advocate, or CID person; somebody other than the individual who issued what is perceived as an unlawful order.

Calling for any member of the armed forces to disobey orders is a dangerous thing. One cannot overemphasize that this is an area that must be very carefully approached. But if you have an unlawful order - and the case reports are replete with obviously illegal orders. "Go ahead, and shoot that prisoner.” And, “take her back out to the range and kill her.” Or, “Don't worry about the brakes on this truck, just continue through town." These cases demonstrate that there are instances where our soldiers, who are better trained today than they have ever been, who are more intelligent than they have ever been, can say, "Wait a minute lieutenant, are you sure you want me to actually execute this person?"

There is a current case in which a lieutenant platoon leader told his soldiers to shoot two Afghan guys on a motorcycle, and the soldiers’ shots purposely missed. In another instance, when he gave a similar order, they purposely failed to carry it out. "Oh, my weapon's jammed, lieutenant." A soldier knows, today, when there's a patently unlawful order given. We're not talking about orders that are “on the edge.” We're talking about patently illegal orders, and those illegal orders should not be obeyed. But, again, soldiers, sailors, et cetera, must be very careful upon approaching that line of disobedience, because you disobey an order at your own peril. If one disobeys an order, he/she must be very sure it’s an unlawful order, and that's asking a lot of a young man or woman.

VI: In the blatant case of torture, since there are clear guidelines, are the soldiers, sailors, and air personnel engaged in conflicts educated and informed sufficiently about these challenges? You've written a book on the laws of war which are taught in military academies and JAG schools. Is it enough for soldiers to say, "We recognize this as torture and we do not want to be involved?"

Gary Solis: Yes, I believe it is enough. I believe it has to be enough. Soldiers receive training in their boot camp, in their initial indoctrination as to what the laws of war are. But at times like that, that kind of training doesn't take effect, it has no impact. Those people are overloaded with stuff anyway. But the quality of soldiers that we have today, the members of the armed forces that we have today, is such that if an order is clearly illegal, it is not unreasonable to expect them to not obey. Not only is it not unreasonable, we will prosecute them if they do obey a patently unlawful order.

As I tell cadets at West Point, you may go through a full 20-year career and never hear an unlawful order. It's not something you have to be constantly on the lookout for, but when one comes up it should fly like a red flag, to a man of reasonable intelligence, that it is not lawful. In those cases, the individual will be tasked with not obeying the order, it's a very unusual thing in today's armed forces, in my opinion, that illegal orders are issued. I think this really is not as big an issue as we may be suggesting it is by this close attention. But there is no denying that it happens.

VI: What about the use of civilian contractors like Blackwater, or CIA trained militias?

Gary Solis: Well, there's also no denying that there have been instances of this. Of course, the recent convictions of the Nisour Square accuseds, where Blackwater personnel simply mowed down civilian individuals in their automobiles who were passing by. It's clear that such instances of unrestrained violence by armed civilian contractors is not going to be overlooked, nor should it be. Individuals who are employees of corporations like Triple Canopy, Blackwater, DynCorp, and so forth, the rules apply to them, as well as soldiers. If they commit war crimes, they too are subject to prosecution in federal courts. Although, it's a difficult thing to prosecute a crime that occurred in another nation thousands of miles away, where the victims are dead and witnesses aren't going to come to the court, and so on. But it can be done, as has been evidenced in prosecutions and convictions of the Nisour Square incident.

No, they are not home free, and their mission and their constraints have to be clearly articulated and infractions enforced. In most cases, I think they have effectively done so, but it's always the failures, the weak-minded, the weak-willed, the individual prepared to disobey the law at war, who create problems. Anytime we give high-powered weapons to 19- and 20-year-olds, bad stuff is going to happen. Which is not to say that it should be excused, it's just a recognition of fact. All you can do is prosecute. As I tell cadets, "I can't tell you what to do when you're in a combat zone. I can only tell you what you're going to be court-martialed for."

VI: For the candidates engaged in the 2020 presidential race, do you think that they can be confident that the military will abide by international norms, the Geneva Conventions, and their field manuals, along with the additional legislative backup you suggest?

Gary Solis: Yes, I do. I understand that the chances of effective federal legislation happening are slim and none, but I think that it needs to be pressed for. In Nuremberg, in 1945, when we held the International Military Tribunal which tried the worst of the Nazi leaders. Supreme Court Justice Robert Jackson opened the court. He said, "We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well." That is no less true today.

Gary Solis served 26 years in the U.S. Marine Corps, including tours of duty in Vietnam, where he was a company commander. After receiving his J.D., he was a Marine judge advocate and military judge. Following military retirement he earned a Ph.D., taught on the law faculty of The London School of Economics for three years, then joined the United States Military Academy’s Department of Law. For six years he headed West Point’s law of war program, receiving Phi Kappa Phi’s distinguished teaching award and, in 2006, was selected the Military Academy’s outstanding instructor (Apgar Award), after which he promptly retired again. He was a 2006-08 Library of Congress scholar in residence. His books include, The Law of Armed Conflict, recipient of the American Society of International Law’s highest literary award, the Certificate of Merit. He is the U.C. Davis School of Law’s 2018 Distinguished Alumnus Award, and the Judge Advocate Association’s 2019 Distinguished Lifetime Achievement Award.