May
17 - The White House's top lawyer warned more
than two years ago that U.S. officials could
be prosecuted for "war crimes" as a result
of new and unorthodox measures used by the
Bush administration in the war on terrorism,
according to an internal White House memo
and interviews with participants in the debate
over the issue.
The
concern about possible future prosecution
for war crimes - and that it might even apply
to Bush administration officials themselves
- is contained in a crucial portion of an
internal January 25, 2002, memo by White House
counsel Alberto Gonzales obtained by NEWSWEEK.
It urges President George Bush declare the
war in Afghanistan, including the detention
of Taliban and Al Qaeda fighters, exempt from
the provisions of the Geneva Convention.
In
the memo, the White House lawyer focused on
a little known 1996 law passed by Congress,
known as the War Crimes Act, that banned any
Americans from committing war crimes-defined
in part as "grave breaches" of the Geneva
Conventions. Noting that the law applies to
"U.S. officials" and that punishments for
violators "include the death penalty," Gonzales
told Bush that "it was difficult to predict
with confidence" how Justice Department prosecutors
might apply the law in the future. This was
especially the case given that some of the
language in the Geneva Conventions - such
as that outlawing "outrages upon personal
dignity" and "inhuman treatment" of prisoners
- was "undefined."
One
key advantage of declaring that Taliban and
Al Qaeda fighters did not have Geneva Convention
protections is that it "substantially reduces
the threat of domestic criminal prosecution
under the War Crimes Act," Gonzales wrote.
"It
is difficult to predict the motives of prosecutors
and independent counsels who may in the future
decide to pursue unwarranted charges based
on Section 2441 [the War Crimes Act]," Gonzales
wrote.
The
best way to guard against such "unwarranted
charges," the White House lawyer concluded,
would be for President Bush to stick to his
decision - then being strongly challenged
by Secretary of State Powell - to exempt the
treatment of captured Al Qaeda and Taliban
fighters from Geneva convention provisions.
"Your
determination would create a reasonable basis
in law that (the War Crimes Act) does not
apply which would provide a solid defense
to any future prosecution," Gonzales wrote.
The
memo-and strong dissents by Secretary of State
Colin Powell and his chief legal advisor,
William Howard Taft IV-are among hundreds
of pages of internal administration documents
on the Geneva Convention and related issues
that have been obtained by NEWSWEEK and are
reported for the first time in this week's
issue.
The
memos provide fresh insights into a fierce
internal administration debate over whether
the United States should conform to international
treaty obligations in pursuing the war on
terror. Administration critics have charged
that key legal decisions made in the months
after Sept. 11, including the White House's
February 2002 declaration not to grant any
Al Qaeda and Taliban fighters prisoners of
war status under the Geneva Convention, laid
the groundwork for the interrogation abuses
that have recently been revealed in the Abu
Ghraib prison in Iraq.
A
copy of the Gonzales memo and the response
to it by Secretary of State Colin Powell are
being posted today on NEWSWEEK's web site
accompanying this article.
As
reported in this week's magazine edition,
the Gonzales memo urged Bush to declare all
aspects of the war in Afghanistan - including
the detention of both Al Qaeda and Taliban
fighters - exempt from the strictures of the
Geneva Convention. In the memo, Gonzales described
the war against terrorism as a "new kind of
war" and then added: "The nature of the new
war places a high premium on other factors,
such as the ability to quickly obtain information
from captured terrorists and their sponsors
in order to avoid further atrocities against
American civilians, and the need to try terrorists
for war crimes such as wantonly killing civilians."
But
while top White House officials publicly talked
about trying Al Qaeda leaders for war crimes,
the internal memos show that administration
lawyers were privately concerned that they
could tried for war crimes themselves based
on actions the administration were taking,
and might have to take in the future, to combat
the terrorist threat.
The
issue first arises in a January 9, 2002, draft
memorandum written by the Justice Department's
Office of Legal Counsel (OLC) concluding that
"neither the War Crimes Act nor the Geneva
Conventions" would apply to the detention
conditions of Al Qaeda or Taliban prisoners
at Guantanamo Bay Cuba. The memo includes
a lengthy discussion of the War Crimes Act,
which it concludes has no binding effect on
the president because it would interfere with
his Commander in Chief powers to determine
"how best to deploy troops in the field."
(The memo, by Justice lawyers John Yoo and
Robert Delahunty, also concludes - in response
to a question by the Pentagon - that U.S.
soldiers could not be tried for violations
of the laws of war in Afghanistan because
such international laws have "no binding legal
effect on either the President or the military.")
But
while the discussion in the Justice memo revolves
around the possible application of the War
Crimes Act to members of the U.S. military,
there is some reason to believe that administration
lawyers were worried that the law could even
be used in the future against senior administration
officials.
One
lawyer involved in the interagency debates
over the Geneva Conventions issue recalled
a meeting in early 2002 in which participants
challenged Yoo, a primary architect of the
administration's legal strategy, when he raised
the possibility of Justice Department war
crimes prosecutions unless there was a clear
presidential direction proclaiming the Geneva
Conventions did not apply to the war in Afghanistan.
The concern seemed misplaced, Yoo was told,
given that loyal Bush appointees were in charge
of the Justice Department.
"Well,
the political climate could change," Yoo replied,
according to the lawyer who attended the meeting.
"The implication was that a new president
would come into office and start potential
prosecutions of a bunch of ex-Bush officials,"
the lawyer said. (Yoo declined comment.)
This
appears to be precisely the concern in Gonzales's
memo dated January 25, 2002, in which he strongly
urges Bush to stick to his decision to exempt
the treatment of Taliban and Al Qaeda fighters
from the provisions of the Geneva Conventions.
(Powell and the State Department had wanted
the U.S. to at least have individual reviews
of Taliban fighters before concluding that
they did not qualify for Geneva Convention
provisions.)
One
reason to do so, Gonzales wrote, is that it
"substantially reduces the threat of domestic
criminal prosecution under the War Crimes
Act." He added that "it is difficult to predict
with confidence what actions might be deemed
to constitute violations" of the War Crimes
Act just as it was "difficult to predict the
needs and circumstances that could arise in
the course of the war on terrorism." Such
uncertainties, Gonzales wrote, argued for
the President to uphold his exclusion of Geneva
Convention provisions to the Taliban and Al
Qaeda detainees who, he concluded, would still
be treated "humanely and, to the extent appropriate
and consistent with military necessity, in
a manner consistent with the principles" of
the Geneva Convention on the treatment of
prisoners of war.
In
the end, after strong protests from Powell,
the White House retreated slightly. In February
2002, it proclaimed that, while the United
States would adhere to the Geneva Conventions
in the conduct of the war in Afghanistan,
captured Taliban and Qaeda fighters would
not be given prisoner of war status under
the conventions. It is a rendering that Administration
lawyers believed would protect U.S. interrogators
or their superiors in Washington from being
subjected to prosecutions under the War Crimes
Act based on their treatment of the prisoners.


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