WEB EXCLUSIVE Newsweek Updated: 9:14 a.m. ET May 19, 2004
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 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. 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 magazine. Newsweek made some of them
available online today. 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
September 11, 2001 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. 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
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
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
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.) 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 necessarity, in a manner
consistst 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. © 2006 MSNBC.com
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