Bush administration officials be prosecuted for
'war crimes' as a result of new measures used
in the war on terror? The White House's top lawyer
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 adminstration
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.
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."
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.
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.
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.
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 magazine. Newsweek made some of
them available online today.
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
terorrism 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
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.
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.")
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.
lawyerinvolved 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.
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.)
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 provisons 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.)
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 necessarity, in a manner consistst with
the principles" of the Geneva Convention on the
treatment of prisoners of war.
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
2004 Newsweek, Inc.
Posted: May 23, 2004