| MEMO 4 U.S. Department of 
		JusticeOffice of the Legal Counsel
 Office of the Deputy 
		Assistant Attorney GeneralWashington, D.C. 20530
 January 9, 2002 MEMORANDUM FOR 
		WILLIAM J. HAYNES IIGENERAL COUNSEL, DEPARTMENT OF DEFENSE
 FROM: John YooDeputy Assistant Attorney General
 Robert J. DelahuntySpecial Counsel
 RE: Application 
		of Treaties and Laws to al Qaeda and Taliban Detainees 
			
				
					| 
					"Which 
					brings us to HYPOTHESIS NUMBER THREE: THE ORDER USES THE 
					HEGELIAN DIALECTIC PROCESS TO BRING ABOUT SOCIETY IN WHICH 
					THE STATE IS ABSOLUTE, i.e., ALL POWERFUL.
 This hypothesis, of course, reflects the gulf between The 
					Order and American society. The gulf stems from the 
					differing views of the relationship between the State and 
					the individual.
 
 Which is superior? Our whole way of life is based on the 
					assumption that the individual is superior to the State. 
					That the individual is the ultimate holder of sovereignty. 
					That the State is the servant of the people. It's deeply 
					engrained within us.
 
 The Order holds the opposite -- that the State is superior, 
					that the common man (the peasant) can find freedom only by 
					obedience to the State.
 
 Now, of course, the State is a fiction. So who or what 
					controls the State?
 
 Obviously, The Order."
 
 America's Secret 
					Establishment -- An Introduction to the Order of Skull and 
					Bones, by Antony C. Sutton
 |  You have asked for 
		our Office's views concerning the effect of international treaties and 
		federal laws on the treatment of individuals detained by the U.S. Armed 
		Forces during the conflict in Afghanistan.  In particular, you have 
		asked whether the laws of armed conflict apply to the conditions of 
		detention and the procedures for trial of members of al Qaeda and the 
		Taliban militia.  We conclude that these treaties do not protect 
		members of the al Qaeda organization, which as a non-State actor cannot 
		be a party to the international agreements governing war.  We 
		further conclude that that these treaties do not apply to the Taliban 
		militia.  This memorandum expresses no view as to whether the 
		President should decide, as a matter of policy, that the U.S. Armed 
		Forces should adhere to the standards of conduct in those treaties with 
		respect to the treatment of prisoners. We believe it most 
		useful to structure the analysis of these questions by focusing on the 
		War Crimes Act, 18 U.S.C. § 2441 (Supp. III 
		1997) ("WCA").  The WCA directly incorporates several provisions of 
		international treaties governing the laws of war into the federal 
		criminal code.  Part I of this memorandum describes the WCA and teh 
		most relevant treaties taht it incorporates:  the four 1949 Geneva 
		Conventions, which generally regulate the treatment of n on-combatants, 
		such as prisoners of war ("POWs"), the injured and sick, and civilians. 
		[1] 
		Part II examines whether al Qaeda 
		detainees can claim the protections of these agreements. Al Qaeda is 
		merely a violent political movement or organization and not a 
		nation-state. As a result, it is ineligible to be a signatory to any 
		treaty. Because of the novel nature of this conflict, moreover, we do 
		not believe that al Qaeda would be included in non-international forms 
		of armed conflict to which some provisions of the Geneva Conventions 
		might apply. Therefore, neither the Geneva Conventions nor the WCA 
		regulate the detention of al Qaeda prisoners captured during the 
		Afghanistan conflict.  
		Part III discuses whether the same 
		treaty provisions, as incorporated through the WCA apply to the 
		treatment of captured members of the Taliban militia. We believe that 
		the Geneva Conventions do not apply for several reasons. First, the 
		Taliban was not a government and Afghanistan was not – even prior to the 
		beginning of the present conflict – a functioning State during the 
		period in which they engaged in hostilities against the United States 
		and its allies. Afghanistan’s status as a failed state is ground alone 
		to find that members of the Taliban militia are not entitled to enemy 
		POW status under the Geneva Conventions. Further, it is clear that the 
		President has the constitutional authority to suspend our treaties with 
		Afghanistan pending the restoration of a legitimate government capable 
		of performing Afghanistan’s treaty obligations. Second, it appears from 
		the public evidence that the Taliban militia may have been so 
		intertwined with al Qaeda as to be functionally indistinguishable from 
		it. To the extent that the Taliban militia was more akin to a 
		non-governmental organization that used military force to pursue its 
		religious and political ideology than a functioning government, its 
		members would be on the same legal footing as al Qaeda.  
		In part IV, we address the 
		question whether any customary international law of armed conflict may 
		apply to the al Qaeda or Taliban militia members detained during the 
		course of the Afghanistan Conflict. We conclude that customary 
		international law, whatever its source and content, does not bind the 
		President or restrict the actions of the United States military, because 
		it does not constitute federal law recognized under the Supremacy Clause 
		of the Constitution. The President, however, has the constitutional 
		authority as Commander in Chief to interpret and apply the customary or 
		common laws of war in such a way that they would extend to the conduct 
		of members of both al Qaeda and the Taliban, and also to the conduct of 
		the U.S. Armed Forces towards members of those groups taken as prisoners 
		in Afghanistan.  
		I. Background and Overview of 
		the War Crimes Act and the Geneva Conventions 
		It is our understanding that your 
		department is considering two basic plans regarding the treatment of 
		members of al Qaeda and the Taliban militia detained during the 
		Afghanistan conflict. First, the Defense Department intends to make 
		available a facility at the U.S. Navy base at Guantanamo Bay, Cuba, for 
		the long-term detention of these individuals, who have come under our 
		control either through capture by our military or transfer from our 
		allies in Afghanistan. We have discussed in a separate memorandum the 
		federal jurisdiction issues that might arise concerning Guantanamo Bay. 
		[2] Second, your department is developing procedures to implement the 
		President’s Military Order of November 13, 2001, which establishes 
		military commissions for the trial of violations of the laws of war 
		committed by non-U.S. citizens. [3] The question has arisen whether the 
		Geneva Conventions, or other relevant international treaties or federal 
		laws, regulate these proposed policies. 
 We believe that the WCA provides a useful starting point for our 
		analysis of the application of the Geneva Conventions to the treatment 
		of detainees captured in the Afghanistan theater of operations. [4] Section 
		2441 of Title 18 renders certain acts punishable as "war crimes." The 
		statute’s definition of that term incorporates, by reference, certain 
		treaties or treaty provisions relating to the laws of war, including the 
		Geneva Conventions.
 
 A.  Section 2441: An Overview
 
		Section 2441 reads in full as 
		follows:
 War crimes
 
 (a) Offense -- Whoever, whether inside or outside the United States, 
		commits a war crime, in any of the circumstances described in subsection 
		(b), shall be fined under this title or imprisoned for life or any term 
		of years, or both, and if death results to the victim, shall also be 
		subject to the penalty of death.
 
 (b) Circumstances -- The circumstances referred to in subsection (a) are 
		that the person committing such war crime or the victim of such war 
		crime is a member of the Armed Forces of the United States or a national 
		of the United States (as defined in section 101 of the Immigration and 
		Nationality Act).
 
 (c) Definition -- As used in this section "war crime" means any conduct 
		--
 
 (1) defined as a grave breach in any of the international conventions 
		signed at Geneva 12 August 1949, or any protocol to such convention to 
		which the United States is a party;
 
 (2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague 
		Convention IV, Respecting the Laws and Customs of War on Land, signed 18 
		October 1907;
 
 (3) which constitutes a violation of common Article 3 of the 
		international convention signed at Geneva, 12 August 1949, or any 
		protocol to such convention to which the United States is a party and 
		which deals with non-international armed conflict; or
 
 (4) of a person who, in relation to an armed conflict and contrary to 
		the provisions of the Protocol on Prohibitions or Restrictions on the 
		Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 
		May 1996 (Protocol II as amended on 3 May 1996), when the United States 
		is a party to such Protocol, willfully kills or causes serious injury to 
		civilians.
 
 18 U.S.C. § 2441.
 
 Section 2441 lists four categories of war crimes. First, it criminalizes 
		"grave breaches" of the Geneva Conventions, which are defined by treaty 
		and will be discussed below. Second, it makes illegal conduct prohibited 
		by articles 23, 25, 27, and 28 of the Annex to the Hague Convention IV. 
		Third, it criminalizes violations of what is known as "common" Article 
		3, which is an identical provision common to all four of the Geneva 
		Conventions. Fourth, it criminalizes conduct prohibited by certain other 
		laws of war treaties, once the United States joins them. A House Report 
		states that the original legislation "carries out the international 
		obligations of the United States under the Geneva Conventions of 1949 to 
		provide criminal penalties for certain war crimes." H.R. Rep. No. 
		104-698 at 1 (1996), reprinted in 1996 U.S.C.C.A.N. at 2166, 2166. each 
		of those four conventions includes a clause relating to legislative 
		implementation and to criminal punishment. [5]
 
 In enacting section 2441, Congress also sought to fill certain perceived 
		gaps in the coverage of federal criminal law. The main gaps were thought 
		to be of two kinds: subject matter jurisdiction and personal 
		jurisdiction. First, Congress found that "[t]here are major gaps in the 
		prosecutability of individuals under federal criminal law for war crimes 
		committed against Americans." H.R. Rep. No. 104-698 at 6, reprinted in 
		1996 U.S.C.C.A.N. at 2170. [6]  Second, Congress found that "[t]he 
		ability to court martial members of our armed services who commit war 
		crimes ends when they leave military service. [Section 2441] would allow 
		fir prosecution even after discharge." Id. at 7, reprinted in 1996 
		U.S.C.C.A.N. at 2172. [7] Congress considered it important to fill this 
		gap, not only in the interest of the victims of war crimes, but also of 
		the accused. "The Americans prosecuted would have available all the 
		procedural protections of the American justice system. These might be 
		lacking if the United States extradited the individuals to their 
		victims’ home countries for prosecution." Id. [8] Accordingly, Section 
		2441 criminalizes forms of conduct in which a U.S. national or a member 
		of the Armed Forces may be either a victim or a perpetrator.
 
 B. Grave Breaches of the Geneva Conventions
 
 The Geneva Conventions were approved by a diplomatic conference on 
		August 12, 1949, and remain the agreements to which more States have 
		become parties than any other concerning the laws of war. Convention I 
		deals with the treatment of the wounded and sick in armed forces in the 
		filed; Convention II addresses treatment of the wounded, sick, and 
		shipwrecked in armed forces at sea; Convention III regulates treatment 
		of POWs; Convention IV addresses the treatment of citizens, the Geneva 
		Conventions set the rules for the treatment of the victims of war.
 
 The Geneva Conventions, like treaties generally, structure legal 
		relationships between Nation States, not between Nation States and 
		private, subnational groups or organizations. [9] All four Conventions 
		share the same Article 2, known as "common Article 2." It states:
 
		In addition to the provisions 
		which shall be implemented in peacetime, the present Convention shall 
		apply to all cases of declared war or of any other armed conflict which 
		may arise between two or more of the High Contracting Parties, even if 
		the state of war is not recognized by one of them.  
		The Convention shall also apply to 
		all cases of partial or total occupation of the territory of a High 
		Contracting Party, even if the said occupation meets with no armed 
		resistance.  
		Although one of the Powers in 
		conflict may not be a party to the present Convention, the Powers who 
		are parties thereto shall remain bound by it in their mutual relations. 
		They shall furthermore be bound by the Convention in relation to the 
		said Power, if the latter accepts and applies the provisions thereof. 
		(Emphasis added)
 As incorporated by § 2441(c)(1), the four Geneva Conventions similarly 
		define "grave breaches." Geneva Convention III on POWs defines grave 
		breach as:
 
		willful killing, torture or 
		inhuman treatment, including biological experiments, willfully causing 
		great suffering or serious injury to body or health, compelling a 
		prisoner of war to serve in the forces of the hostile Power, or 
		willfully depriving a prisoner of war of the rights of fair and regular 
		trial prescribed in this Convention. 
		Geneva Convention III, art. 130. 
		As mentioned before, the Geneva Conventions require the High Contracting 
		Parties to enact penal legislation to punish anyone who commits or 
		orders a grave breach. See, e.d., id. art. 129. Further, each State 
		party has the obligation to search for and bring to justice (either 
		before its courts or by delivering a suspect to another State party) 
		anyone who commits a grave breach. No State party is permitted to 
		absolve itself or any other nation liability for committing a grave 
		breach.
 Thus, the WCA does not criminalize all breaches of the Geneva 
		Conventions. Failure to follow some of the regulations regarding the 
		treatment of POWs, such as difficulty in meeting all of the conditions 
		set forth for POW camp conditions, does not constitute a grave breach 
		within the meaning of Geneva Convention III, art. 130. Only by causing 
		great suffering or serious bodily injury to POWs, killing or torturing 
		them, depriving them of access to a fair trial, or forcing them to serve 
		in the Armed Forces, could the United States actually commit a grave 
		breach. Similarly, unintentional, isolated collateral damage on civilian 
		targets would not constitute a grave breach within the meaning of Geneva 
		Convention IV, art. 147. Article 147 requires that for a grave breach to 
		have occurred, destruction of property must have been done "wantonly" 
		and without military justification, while the killing of injury of 
		civilians must have been "willful."
 
 D. Common Article 3 of the Geneva Conventions
 
 Section 2441 (c)(3) also defines as a war crime conduct that 
		"constitutes a violation of common Article 3" of the Geneva Conventions. 
		Article 3 is a unique provision that governs the conduct of signatories 
		to the Conventions in a particular kind of conflict that is not one 
		between High Contracting Parties to the Conventions. Thus, common 
		Article 3 may require the United States, as a High Contracting Party, to 
		follow certain rules even if other parties to the conflict are not 
		parties to the Conventions. On the other hand, Article 3 requires state 
		parties to follow only certain minimum standards of treatment toward 
		prisoners, civilians, or the sick and wounded, rather than the 
		Conventions as a whole.
 
 Common Article 3 reads in relevant part as follows:
 
		In the case of armed conflict not 
		of an international character occurring in the territory of one of the 
		High Contracting Parties, each Party to the conflict shall be bound to 
		apply, as a minimum, the following provisions: 
		(1) Persons taking no active part 
		in the hostilities, including members of armed forces who have laid down 
		their arms and those placed hors de combat by sickness, wounds, 
		detention, or any other cause, shall in all circumstances be treated 
		humanely, without any adverse distinction founded on race, color, 
		religion or faith, sex, birth, or wealth, or any other similar criteria. 
		To this end, the following acts 
		are and shall remain prohibited at any time and in any place whatsoever 
		with respect to the above-mentioned persons: 
		(a) violence to life and person, 
		in particular murder of all kinds, mutilation, cruel treatment and 
		torture; 
		(b) taking of hostages; 
		(c) outrages upon personal 
		dignity; in particular humiliating and degrading treatment; 
		(d) the passing of sentences and 
		the carrying out of executions without previous judgment pronounced by a 
		regularly constituted court, affording all the judicial guarantees which 
		are recognized as indispensable by civilized peoples.  
		(2) The wounded and sick shall be 
		collected and cared for… 
		The application of the preceding 
		provisions shall not affect the legal status of the Parties to the 
		conflict. 
		Common article 3 complements 
		common Article 2. Article 2 applies to cases of declared war or of any 
		other armed conflict that may arise between two or more of the High 
		Contracting Parties, even if the state of war is not recognized by one 
		of them. [10] Common Article 3, however, covers "armed conflict not of 
		an international character" – a war that does not involve cross-border 
		attacks – that occurs within the territory of one of the High 
		Contracting Parties. There is substantial reason to think that this 
		language refers specifically to a condition of civil war, or a 
		large-scale armed conflict between a State and an armed movement within 
		its own territory. 
 To begin with Article 3’s text strongly supports the interpretation that 
		it applies to large-scale conflicts between a State and an insurgent 
		group. First, the language at the end of Article 3 states that "[t]he 
		application of the preceding provisions shall not affect the legal 
		status of the Parties to the conflict." This provision was designed to 
		ensure that a Party that observed Article 3 during a civil war would not 
		be understood to have granted the "recognition of the insurgents as an 
		adverse party." Frits Kalshoven, Constraints on the Waging of War 59 
		(1987). Second, Article 3 is in terms limited to "armed conflict… 
		occurring in the territory of one of the High Contracting Parties" 
		(emphasis added). This limitation makes perfect sense if the Article 
		applies to civil wars, which are fought primarily or solely within the 
		territory of a single state. The limitation makes little sense, however, 
		as applied to a conflict between a State and a transitional terrorist 
		group, which may operate from different territorial bases, some of which 
		might be located in States that are parties to the Conventions and some 
		of which might not be. In such a case, the Conventions would apply to a 
		single armed conflict in some scenes of action but not in others – which 
		seems inexplicable.
 
 This interpretation is supported by commentators. One well-known 
		commentary states that "a non-international armed conflict is distinct 
		from an international armed conflict because of the legal status of the 
		entities opposing each other, the parties to the conflict are not 
		sovereign States, but the government of a single State in conflict with 
		one or more armed factions within its territory. [11] A legal scholar 
		writing in the same year in which the Conventions were prepared stated 
		that "a conflict not of an international character occurring in the 
		territory of one of the High Contracting Parties… must normally mean a 
		civil war." [12]
 
		Analysis of the background to the 
		adoption of the Geneva Conventions in 1949 confirms our understanding of 
		common Article 3. It appears that the drafters of the Conventions had in 
		mind only the two forms of armed conflict that were regarded as matters 
		of general international concern at the time: armed conflict between 
		Nation States (subject to Article 2), and large-scale civil war within a 
		Nation State (subject to Article 3). To understand the context in which 
		the Geneva Conventions were drafted, it will be helpful to identify 
		three distinct phases in the development of the laws of war. 
		First, the traditional law of war 
		was based on a stark dichotomy between "belligerency" and "insurgency." 
		The category of "belligerency" applied to armed conflicts between 
		sovereign States (unless there was recognition of belligerency in a 
		civil war), while the category of "insurgency" applied to armed violence 
		breaking out within the territory of a sovereign State. [13] 
		Correspondingly, international law treated two classes of conflict in 
		different ways. Inter-state wars were regulated by a body of 
		international legal rules governing both the conduct of hostilities and 
		the protection of noncombatants. By contrast, there were very few 
		international rules governing civil unrest, for States preferred to 
		regard internal strife as rebellion, mutiny and treason coming within 
		the purview of national criminal law, which precluded any possible 
		intrusion by other States. [14] This was a "clearly 
		sovereignty-oriented" phase of international law. [15] 
 The second phase began as early as the Spanish Civil war (1936-39) and 
		extended through the time of the drafting of the Geneva Conventions 
		until relatively recently. During this period, State practice began to 
		apply certain general principles of humanitarian law beyond the 
		traditional field of State-to-State conflict to "those internal 
		conflicts that constituted large-scale civil wars." [16] In addition to 
		the Spanish Civil War, events in 1947 during the Civil War between the 
		Communists and the National regime in China illustrated this new 
		tendency. [17] Common Article 3, which was prepared during this second 
		phase, was apparently addressed to armed conflicts akin to the Chinese 
		and Spanish civil wars. As one commentator has described it, Article 3 
		was designed to restrain governments "in the handling of armed violence 
		directed against them for the express purpose of secession or at 
		securing a change in the government of a State," but even after the 
		adoption of the Conventions it remained "uncertain whether [Article 3] 
		applied to full-scale civil war." [18]
 
 The third phase represents a more complete break than the second with 
		the traditional "State-sovereignty-oriented approach" of international 
		law. This approach gives central place to individual human rights. As a 
		consequence, it blurs the distinction between international and internal 
		armed conflicts, and even that between civil wars and other forms of 
		internal armed conflict. This approach is well illustrated by the ICTY’s 
		decision in Tadic, which appears to take the view that common Article 3 
		applies to a non-international armed conflicts of any description, and 
		is not limited to civil wars between a State and an insurgent group. In 
		this conception, common Article 3 is not just a complement to common 
		Article 2; rather, it is a catch-all that establishes standards for any 
		and all armed conflicts not included in common Article 2. [19]
 
 Nonetheless, despite this recent trend, we think that such an 
		interpretation of common Article 3 fails to take into account, not only 
		the language of the provision, but also its historical context. First, 
		as we have described above, such a reading is inconsistent with the text 
		of Article 3 itself, which applies only to "armed conflict not of an 
		international character occurring in the territory of one of the High 
		Contracting Parties." In conjunction with common Article 2, the text of 
		Article 3 simply does not reach international conflicts where one of the 
		parties is not a Nation State. If we were to read the Geneva Conventions 
		as applying to all forms of armed conflict, we would expect the High 
		Contracting Parties to have used broader language, which the easily 
		could have done. To interpret common Article 3 by expanding its scope 
		well beyond the meaning borne by the text is effectively to amend the 
		Geneva Conventions without approval of the State Parties to the 
		agreements.
 
 Second, as we have discussed, Article 3 was prepared during a period in 
		which the traditional, State-centered view of international law was 
		still dominant and was only just beginning to give way to a 
		human-rights-based approach. Giving due weight to the State practice and 
		doctrinal understanding of the time, it seems to us overwhelmingly 
		likely that an armed conflict between a Nation State and a transitional 
		terrorist organization, or between a Nation State and a failed State 
		harboring and supporting a transitional terrorist organization, could 
		not have been within the contemplation of the drafters of common Article 
		3. These would have been simply unforeseen and, therefore, not provided 
		for. Indeed, it seems to have been uncertain even a decade after the 
		Conventions were signed whether common Article 3 applied to armed 
		conflicts that were neither international in character nor civil wars 
		but anti-colonialist wars of independence such as those in Algeria and 
		Kenya. See Gerald Irving Draper, The Red Cross Conventions 15 (1957). 
		Further, it is telling that in order to address this unforeseen 
		circumstance, the State Parties to the Geneva Conventions did not 
		attempt to distort the terms of common Article 3 to apply it to cases 
		that did not fit within its terms. Instead, they drafted two new 
		protocols (neither of which the United States has ratified) to adapt the 
		Conventions to the conditions of contemporary hostilities. [20] 
		Accordingly, common Article 3 is best understood not to apply to such 
		armed conflicts.
 
 Third, it appears that in enacting the WCA, Congress did not understand 
		the scope of Article 3 to extend beyond civil wars to all other types of 
		internal armed conflict. As discussed in our review of the legislative 
		history, when extending the WCA to cover violations of common Article 3, 
		the House apparently understood that it was codifying treaty provisions 
		that "forbid atrocities occurring in both civil ward and wars between 
		nations." [21] If congress had embraced a much broader view of common 
		Article 3, and hence of 18 U.S.C. § 2441, we would expect both the 
		statutory text and the legislative history to have included some type of 
		clear statement of congressional intent. The WCA regulates the manner in 
		which the U.S. Armed Forces may conduct military operations against the 
		enemy; as such, it potentially comes into conflict with the President’s 
		Commander in Chief power under Article II of the Constitution. As we 
		have advised others earlier in this conflict, the Commander in Chief 
		power gives the President the plenary authority in determining how best 
		to deploy troops in the field. [22] Any congressional effort to restrict 
		presidential authority by subjecting the conduct of the U.S. Armed 
		Forces to a broad construction of the Geneva Convention, one that is not 
		clearly borne by its text, would represent a possible infringement on 
		presidential discretion to direct the military. We believe that Congress 
		must state explicitly its intention to take the constitutionally dubious 
		step of restricting the President’s plenary power over military 
		operations (including the treatment of prisoners), and that, unless 
		Congress clearly demonstrates such an intent, the WCA must be read to 
		avoid such constitutional problems. [23] As congress has not signaled 
		such a clear intention in this case, we conclude that common Article 3, 
		should not be read to include all forms of non-international armed 
		conflict.
 
 II. Application of WCA and Associated Treaties to al Qaeda
 
 It is clear from the foregoing that members of the al Qaeda terrorist 
		organization do not receive the protections of the laws of war. 
		Therefore, neither their detention nor their trial by the U.S. Armed 
		Forces is subject to the Geneva Conventions (or the WCA). Three reasons, 
		examined in detail below, support this conclusion. First, al Qaeda’s 
		status as a non-State actor renders it ineligible to claim the 
		protections of the Geneva Conventions. Second, the nature of the 
		conflict precludes application of common Article 3 of the Geneva 
		Conventions. Third, al Qaeda members fail to satisfy the eligibility 
		requirements for treatment as POWs under Geneva Convention III.
 
 Al Qaeda’s status as a non-State actor renders it ineligible to claim 
		the protections of the treaties specified by the WCA. Al Qaeda is not a 
		State. It is a non-governmental terrorist organization composed of 
		members from many nations, with ongoing operations in dozens of nations. 
		Its members seem united in following a radical brand of Islam that seeks 
		to attack Americans throughout the world. Non-governmental organizations 
		cannot be parties to any of the international agreements here governing 
		the laws of war. Al Qaeda is not eligible to sign the Geneva Conventions 
		– and even if it were eligible, it has not done so. Common Article 2, 
		which triggers the Geneva Convention provisions regulating detention 
		conditions and procedures for trial of POWs, is limited only to cases of 
		declared war or armed conflict "between two or more of the High 
		Contracting Parties." Al Qaeda is not a High Contracting Party. As a 
		result, the U.S. military’s treatment of al Qaeda members is not 
		governed by the bulk of the Geneva Conventions, specifically those 
		provisions concerning POWs. Conduct towards captured members of al 
		Qaeda, therefore, also cannot constitute a violation of 18 U.S.C. § 2441 
		(c)(1) or § 2441 (c)(2). [24]
 
 Second, 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. As discussed in Part I, the text of Article 3, when read in 
		harmony with Common Article 2, shows that the Geneva Conventions were 
		intended to cover either: a) traditional wars between Nation States 
		(Article 2), or non-international civil wars (Article 3). Our conflict 
		with al Qaeda does not fit into either category. The current conflict is 
		not an international war between Nation States, but rather a conflict 
		between a Nation State and a non-governmental organization. At the same 
		time, the current conflict is not a civil war under Article 3, because 
		it is a conflict of "an international character," rather than an 
		international armed conflict between parties contending for control over 
		a government or territory. Therefore, the military’s treatment of al 
		Qaeda members captured in that conflict is not limited either by common 
		Article 3 of the Geneva Conventions or 18 U.S.C. § 2441 (c)(3), the 
		provision of the WCA incorporating that article. [25]
 
 Third, al Qaeda members fail to satisfy the eligibility requirements for 
		treatment as POWs under Geneva Convention III. It might be argues that, 
		even though it is not a State party to the Geneva Convention, al Qaeda 
		could be covered by some protections in Geneva Convention III on the 
		treatment of POWs. Article 4(A)(2) of the Geneva Convention III defines 
		prisoners of war as including not only captured members of the armed 
		forces of a High Contracting Party, but also irregular forces such as "[m]embers 
		of other militias and members of other volunteer corps, including those 
		of organized resistance movements." Geneva Convention III, art. 4. 
		Article 4(A)(3) also includes as POWs "[m]embers of regular armed forces 
		who profess allegiance to a government or an authority not recognized by 
		the Detaining Power." Id. art. 4(A)(3). It might be claimed that the 
		broad terms of these provisions could be stretched to cover al Qaeda.
 
 This view would be mistaken. Article 4 does not expand the application 
		of the Convention beyond the circumstances expressly addressed in common 
		Articles 2 and 3. Unless there is a conflict subject to Article 2 or 3 
		(the Convention’s jurisdictional provisions), Article 4 simply does not 
		apply. As we have argued with respect to Article 3, and shall further 
		argue with respect to Article 2, the conflict in Afghanistan does not 
		fall within either Articles 2 or 3. As a result, Article 4 has no 
		application. In other words, Article 4 cannot be read as an alternative 
		and far more expansive, statement of the application of the Convention. 
		It merely specifies, where there is a conflict covered by the 
		Convention, who must accord POW status.
 
 Even if Article 4, however, were considered somehow to be jurisdictional 
		as well as substantive, captured members of al Qaeda still would not 
		receive the protections accorded to POWs. Article 4(A)(2), for example, 
		further requires that the militia or volunteers fulfill the conditions 
		first established by the Hague Convention IV of 1907 for those who would 
		receive that protections of the laws of war. Hague Convention IV 
		declares that the "laws, rights and duties of war" only apply to armies, 
		militia, and volunteer corps when they fulfill four conditions: command 
		by responsible individuals, wearing insignia, carrying arms openly, and 
		obeying the laws of war. Hague Convention IV, Respecting the Laws and 
		Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277. Al Qaeda members 
		have clearly demonstrated that they will not follow these basic 
		requirements of lawful warfare. They have attacked purely civilian 
		targets of no military value; they refused to wear uniform or insignia 
		or carry arms openly, but instead hijacked civilian airliners, took 
		hostages, and killed them; they have deliberately targeted and killed 
		thousands of civilians; and they themselves do not obey the laws of war 
		concerning the protection of the lives of civilians or the means 
		legitimate to combat. Thus, Article 4(A)(3) is inapt because al Qaeda do 
		not qualify as "regular armed forces," and its members do not qualify 
		for protection as lawful combatants under the laws of war.
 
 III. Application of the Geneva Conventions to the Taliban Militia
 
 Whether the Geneva Conventions apply to the detention and trial of 
		members of the Taliban militia presents a more difficult legal question. 
		Afghanistan has been a party to all four the Geneva Conventions since 
		September 1956. Some might argue that this requires application of the 
		Geneva Conventions to the present conflict with respect to the Taliban 
		militia, which would then trigger the WCA. This argument depends, 
		however, on the assumptions that during the period in which the Taliban 
		militia was ascendant in Afghanistan, the Taliban was the de facto 
		government of that nation, that Afghanistan continued to have the 
		essential attributes of statehood, and that Afghanistan continued in 
		good standing as a party to the treaties that its previous governments 
		had signed.
 
 We think that all of these assumptions are disputable, and indeed false. 
		The weight of informed opinion strongly supports the conclusion that, 
		for the period in question, Afghanistan was a "failed State" whose 
		territory had been largely overrun and held by violence by a militia of 
		faction rather than by a government. Accordingly, Afghanistan was 
		without the attributes of statehood necessary to continue as a party to 
		the Geneva Conventions, and the Taliban militia like al Qaeda, is 
		therefore not entitled to the protections if the Geneva Conventions. 
		Furthermore, there appears to be substantial evidence that the Taliban 
		leadership cannot be distinguished from al Qaeda, and accordingly that 
		the Taliban militia cannot stand on a higher footing under the Geneva 
		Conventions.
 
 A. Constitutional Authority
 
 It is clear that, under the Constitution, the Executive has the plenary 
		authority to determine that Afghanistan ceased at relevant times to be 
		an operating State and therefore that members of the Taliban militia 
		were and are not protected by the Geneva Conventions. [26] As an initial 
		matter, Article II makes clear that the President is vested with all of 
		the federal executive power, that he "shall be Commander in Chief," that 
		he shall appoint, with the advice and consent of the Senate, and 
		receive, ambassadors, and that he "shall have Power, by and which the 
		Advice and Consent of the Senate, to make Treaties." U.S. Const, art. 
		II, §1 limits Congress to "[a]ll legislative Powers herein granted" in 
		the rest of Article I.
 
 From the very beginnings of the Republic, this constitutional 
		arrangement has been understood to grant the President plenary control 
		over the conduct of foreign relations. As Secretary of State Thomas 
		Jefferson observed during the first Washington Administration: "The 
		constitution has divided the powers of government into three branches 
		[and] … has declared that ‘the executive powers shall be vested in the 
		President,’ submitting only special articles of it to a negative by the 
		senate." [27] Due to this structure, Jefferson continued, "[t]he 
		transaction of business with foreign nations is Executive altogether. It 
		belongs then to the head of that department, except as to such portions 
		of it as are specially submitted to the Senate. Exceptions are to be 
		construed strictly." [28] In defending President Washington’s authority 
		to issue the Neutrality Proclamation, Alexander Hamilton came to the 
		same interpretation of the President’s foreign affairs powers. According 
		to Hamilton, Article II "ought… to be considered as intended… to specify 
		and regulate the principal articles implied in the definition of 
		Executive Power; leaving the rest to flow from the general grant of that 
		power." [29] As future Chief Justice John Marshall famously declared a 
		few years later, "The President is the sole organ of the nation in its 
		external relations, and its sole representative with foreign nations… 
		The [executive] department… is entrusted with the whole foreign 
		intercourse of the nation…" [30] Given the agreement of Jefferson, 
		Hamilton, and Marshall, it has not been difficult for the executive 
		branch consistently to assert the President’s plenary authority in 
		foreign affairs ever since.
 
 On a few occasions where it has addressed the question, the Supreme 
		Court has lent its approval to the executive branch’s broad powers in 
		the field of foreign affairs. Responsibility for the conduct of foreign 
		affairs and for protecting the national security are, as the Supreme 
		Court has observed, "central’ Presidential domains." [31] The 
		President’s constitutional primacy flows from both his unique position 
		in the constitutional structure, and from the specific grants of 
		authority in Article II that make the President both the Chief Executive 
		of the nation and the Commander in Chief. [32] Due to the President’s 
		constitutionally superior position, the Supreme Court has consistently 
		"recognized ‘the generally accepted view that foreign policy [is] the 
		province and responsibility of the Executive.’" [33] This foreign 
		affairs power is independent of Congress: it is "the very delicate, 
		plenary, and exclusive power of the President as sole organ of the 
		federal government in the field of international relations – a power 
		which does not require as a basis for its exercise an act of Congress. 
		[34]
 
 Part of the President’s plenary power over the conduct of the Nation’s 
		foreign relations is the interpretation of treaties and of international 
		law. Interpretation of international law includes the determination 
		whether a territory has the necessary political structure to qualify as 
		a Nation State for purposes of treaty implementation. In Clark v. Allen, 
		331 U.S. 503 (1947), for example, the Supreme Court considered whether a 
		1923 treaty with Germany continued to exist after the defeat, occupation 
		and partition of Germany by the victorious World War II Allies. The 
		Court rejected the argument that the treaty "must be held to have failed 
		to survive the [Second World War], since Germany, as a result of its 
		defeat and the occupation by the Allies, has ceased to exist as an 
		independent national or international community." [35] Instead, the 
		Court held that "the question whether a state is in a position to 
		perform its treaty obligations is essentially a political question. 
		Terliden v. Ames, 184 U.S. 270, 288 [(1902)]. We find no evidence that 
		the political departments have considered the collapse and surrender of 
		Germany as putting an end to such provisions of the treaty as survived 
		the outbreak of the war or the obligations of either party in respect to 
		them." [36]
 
 Thus, Clark demonstrates the Supreme Court’s sanction for the 
		Executive’s constitutional authority to decide the "political question" 
		whether Germany had ceased to exist as a Nation State and, if so, 
		whether the 1923 treaty with Germany had become inoperative. Equally 
		here, the executive branch should conclude that Afghanistan was not "in 
		a position to perform its treaty obligations" because it lacked, at 
		least throughout the Taliban’s ascendancy, all the elements of 
		statehood. If the Executive made such a determination, the Geneva 
		Conventions would be inoperative as to Afghanistan until it was in a 
		position to perform its Convention duties. The federal courts would not 
		review such political questions, but instead would defer to the decision 
		of the Executive.
 
 B. Status as a Failed State
 
		There are ample grounds that 
		demonstrate that Afghanistan was a failed State. Indeed, the findings of 
		the State and Defense Departments, of foreign leaders, and of expert 
		opinion overwhelmingly support such a conclusion.
 International law recognizes many situations in which there may be a 
		territory that has no "State." A variety of situations can answer to 
		this description. [37] Of chief relevance here is the category of the 
		"failed State." The case of Somalia in 1992, at the time of the United 
		States intervention, provides a clear example of this category.
 
 A "failed State" is generally characterized by the collapse or 
		near-collapse of State authority. Such collapse is characterized by the 
		inability of central authorities to maintain government institutions, 
		ensure law and order or engage in normal dealings with other 
		governments, and by the prevalence of violence that destabilizes civil 
		society and the economy. The Executive can readily find that at the 
		outset of this conflict, when the country was largely in the hands of 
		the Taliban militia, there was no functioning central government in 
		Afghanistan that was capable of providing the most basic services to the 
		Afghan population, of suppressing endemic internal violence, or of 
		maintaining normal relations with other governments. Afghanistan, 
		consequently, was without the status of a State for purposes of treaty 
		law, and the Taliban militia could not have qualified ad the de facto 
		government of Afghanistan. Rather, the Taliban militia would have had 
		the status only of a violent faction or movement contending with other 
		factions for control of that country.
 
 We want to make clear that this Office does not have access to all of 
		the facts related to the activities of the Taliban militia and al Qaeda 
		in Afghanistan. Nonetheless, the available facts in the public record 
		support our conclusion that Afghanistan was a failed state – including 
		facts that pre-existed the military reversals suffered by the Taliban 
		militia and the formation of the new transitional government pursuant to 
		the Bonn agreement. Indeed, the departments best positioned to make such 
		a determination appear to have reached that conclusion some time ago. 
		Secretary of Defense Donald Rumsfeld, for example, declared at a 
		November 2, 2001 press conference that the "Taliban is not a government. 
		The government of Afghanistan does not exist today. The Taliban never 
		was a government as such. It was a force in the country that is not 
		substantially weakened – in many cases cloistered away from the people." 
		[38]
 
 The State Department has taken the same view. Near the start of the 
		conflict, the Bureau of South Asian Affairs found that "[t]here is no 
		functioning central government [in Afghanistan]. The country is divided 
		among fighting factions… the Taliban [is] a radical Islamic movement 
		[that] occupies about 90% of the country. [39]
 
 Prominent authorities and experts on Afghan affairs agree that 
		Afghanistan was a failed State. As one leading scholar of international 
		law has written, "[t]he most dramatic examples of the decline in state 
		authority can be found in countries where government and civil order 
		have virtually disappeared. Recent examples are Liberia, Somalia, and 
		Afghanistan. The term ‘failed states’ has come to be used for these 
		cases and other like them." [40] Lakhdar Brahimi, the United Nations 
		mediator in Afghanistan and a former Algerian Foreign Minister, 
		described Afghanistan under the Taliban ad a "failed state which looks 
		like an infected wound." [41] Tony Blair, the Prime Minister of Great 
		Britain, on a visit to that country this month, declared that 
		"Afghanistan has been a failed state for too long and the whole world 
		has paid the price." [42]
 
 Traditional legal analysis also makes clear that Afghanistan was a 
		failed State during the period of the Taliban militia’s existence. A 
		State has failed when centralized governmental authority has almost 
		completely collapsed, no central authorities are capable of maintaining 
		government institutions or ensuring law and order, and violence has 
		destabilized civil society and the economy. [43] A failed state will not 
		satisfy some or all of the three traditional tests for "statehood" under 
		international law:
 
		i) Does the entity have a defined 
		territory and population? 
		ii) Are the territory/population 
		under the control of its own government? 
		iii) Does the entity engage in or 
		have the capacity to engage in formal relations with other states? [44] 
		In another version of the 
		traditional formulation, the State Department has identified four tests 
		for "statehood": 
		i) Does the entity have effective 
		control over a clearly defined territory and population? 
		ii) Is there an organized 
		governmental administration of the territory? 
		iii) Does the entity have the 
		capacity to act effectively to conduct foreign relations and to fulfill 
		international obligations? 
		iv) Has the international 
		community recognized the entity? [45] 
		Based on these factors, we 
		conclude that Afghanistan under the Taliban militia was in a condition 
		of the "statelessness," and therefore was not a High Contracting Party 
		to the Geneva Conventions for at least that period of time. The 
		condition of having and organized governmental administration was 
		plainly not met. Indeed, there are good reasons to doubt whether any of 
		the conditions was met. 
 First, even before the outset of the conflict with the United States, 
		the Taliban militia did not have effective control over a clearly 
		defined territory and population. Even before the United States air 
		strikes began, at least ten percent of the country, and the population 
		within those areas, was governed by the Northern Alliance. A large part 
		of the Afghan population in recent years has consisted of refugees: as 
		of June 2001, there were an estimated 2,000,000 Afghan refugees in 
		Pakistan, and as of December 2000, an estimated 1,500,000 were in Iran. 
		[46] These figures demonstrate that a significant segment of the Afghan 
		population was never under the control of the Taliban militia. It is 
		unclear how strong was the hold of the Taliban militia before the 
		conflict, in light of the rapid military successes of the Northern 
		Alliance in just a few weeks.
 
 Indeed, the facts appear to show that Afghanistan appears to have been 
		divided between different tribal and warring factions, rather than by 
		any central state as such. As we have noted, the State Department has 
		found that Afghanistan was not under the control of a central 
		government, but was instead divided among different warlords and ethnic 
		groups. The Taliban militia in essence represented only an ethnically 
		Pashtun movement, a "tribal militia," [47] that did not command the 
		allegiance of other major ethnic groups in Afghanistan and that was 
		apparently unable to suppress endemic violence in the country. As a 
		prominent writer on the Taliban militia wrote well before the current 
		conflict began, "[e]ven if [the Taliban] were to conquer the north, it 
		would not bring stability, only continuing guerilla war by the non-Pashtuns, 
		but this time from bases in Central Asia and Iran which would further 
		destabilize the region." [48]
 
 Second, again even before the United States air strikes and the 
		successes of the Northern Alliance, an organized governmental 
		administration did not exist in Afghanistan. One expert on the Taliban 
		concluded that the country had
 
		ceased to exist as a viable state 
		and when a state fails civil society is destroyed. The entire Afghan 
		population has been displaced, not once but many times over. The 
		physical destruction of Kabul has turned it into the Dresden of the late 
		twentieth century… There is no semblance of an infrastructure that can 
		sustain society – even at the lowest common denominator of poverty… The 
		economy is a black hole that is sucking in its neighbors with illicit 
		trade and the smuggling of drugs and weapons, undermining them in the 
		process… Complex relationships of power and authority built up over 
		centuries have broken down completely. No single group or leader has the 
		legitimacy to reunite the country. Rather than a national identity or 
		kinship-trial-based identities, territorial regional identities have 
		become paramount… [T]he Taliban refuse to define the Afghan state they 
		want to constitute and rule over, largely because they have no idea what 
		they want. The lack of a central authority, state organizations, a 
		methodology for command and control mechanisms which can reflect some 
		level of popular participation… make it impossible for many Afghans to 
		accept the Taliban or for the outside world to recognize a Taliban 
		government… No warlord faction has ever felt itself responsible for the 
		civilian population, but the Taliban are incapable of carrying out even 
		the minimum of developmental work because they believe that Islam will 
		take care of everyone. [49] 
		Another expert reached similar 
		conclusions: 
		Afghanistan today has become a 
		violent society, bereft of political institutions that function 
		correctly and an economy that functions at all. When this is coupled 
		with the destruction of population and the physical infrastructure … it 
		becomes clear that Afghanistan is a country on the edge of collapse, or 
		at least profound transformation… With the Taliban, there are few 
		meaningful governmental structures and little that actually functions. 
		[50] 
		The State Department also came to 
		such conclusions. In testimony early in October 2001 before the Senate 
		Foreign Relations Committee’s Subcommittee on Near East and South Asian 
		Affairs, Assistant Secretary of State for South Asian Affairs Christina 
		Rocca explained that: 
		[t]wenty-two years of conflict 
		have steadily devastated [Afghanistan]. Destroyed its physical and 
		political infrastructure, shattered its institutions, and wrecked its 
		socio-economic fabric… The Taliban have shown no desire to provide even 
		the most rudimentary health, education, and other social services 
		expected of any government. Instead, they have chosen to devote their 
		resources to waging war on the Afghan people, and exporting instability 
		to their neighbors. [51] 
		Rather than performing normal 
		government functions, the Taliban militia exhibited the characteristics 
		of a criminal gang. The United Nations Security Council found that the 
		Taliban militia extracted massive profits from illegal drug trafficking 
		in Afghanistan and subsidized terrorism from those revenues. [52]
 Third, the Taliban militia was unable to conduct normal foreign 
		relations or to fulfill its international legal obligations. Indeed, the 
		public record shows that the Taliban militia had become so subject to 
		the domination and control of al Qaeda that it could not pursue 
		independent policies with respect to the outside world. [53] Publicly 
		known facts demonstrate that the Taliban was unwilling and perhaps 
		unable to obey its international obligations and to conduct normal 
		diplomatic relations. Thus, the Taliban has consistently refused to 
		comply with United Nations Security Council Resolutions 1333 (2000) and 
		1267 (1999), which called on it to surrender Osama bin Laden to justice 
		and to take other actions to abate terrorism based in Afghanistan. [54] 
		Those resolutions also called on all States to deny permission for 
		aircraft to take off or to land if they were owned or operated by or for 
		the Taliban, and to freeze funds and other resourced owned or controlled 
		by the Taliban. The Taliban also reportedly refused or was unable to 
		extradite bin Laden at the request of Saudi Arabia in September, 1998, 
		despite close relations between the Saudi government and itself. As a 
		result, the Saudi government expelled the Afghan charge d’affaires. [55] 
		The Taliban’s continuing role in sheltering and supporting those 
		believed to be responsible for the terrorist attacks of September 11, 
		2001 placed it in clear breach of international law, which required it 
		to prevent the use of its territory as a launching pad for attacks 
		against another Nation. [56]
 
 Fourth, the Taliban militia was not recognized as the legitimate 
		government of Afghanistan by the United States or by any member of the 
		international community except Pakistan. Neither the United States nor 
		the United Nations ever recognized that the Taliban militia were a 
		government. The only two other States that had maintained diplomatic 
		relations with it before the current conflict began (Saudi Arabia and 
		the United Arab Emirates) soon served them. [57] Even Pakistan had 
		withdrawn its recognition before the end of hostilities between the 
		United States and the Taliban forces. This universal refusal to 
		recognize the Taliban militia as a government demonstrates that other 
		nations and the United Nations concur in our judgment that the Taliban 
		militia was bi government and that Afghanistan had ceased to operate as 
		a Nation State.
 
 Based on the foregoing, we conclude that the evidence supports the 
		conclusion that Afghanistan, when largely controlled by the Taliban, 
		failed some, and perhaps all, of the ordinary tests of statehood. Nor do 
		we think that the military successes of the United States and the 
		Northern Alliance change that outcome. Afghanistan was stateless for the 
		relevant period of the conflict, even if after the Bonn Agreement it 
		becomes a State recognized by the United Nations, the United States, and 
		most other nations. [58] If Afghanistan was in a condition of 
		statelessness during the time of the conflict, the Taliban militia could 
		not have been considered a government hat was also a High Contracting 
		Party to the Geneva Conventions.
 
 The conclusion that members of the Taliban militia are not entitled to 
		the protections accorded to POWs under the Geneva Conventions received 
		further support from other arguments. As we have already suggested, 
		there is substantial evidence that the Taliban an al Qaeda were so 
		closely intertwined that the Taliban cannot be regarded as an 
		independent actor, and therefore cannot stand on a higher footing under 
		the Geneva Conventions than al Qaeda. Mullah Mohammed Omar, the 
		spiritual leader of the Taliban, appears to have been particularly 
		susceptible to the more sophisticated leadership of al Qaeda, who 
		"introduced him to the world of Islamic radicalism, global jihad and 
		hatred of the United States," who exercised great religions and 
		ideological influence over him, and who furnished him with personal 
		favors such as a bomb-proof house in Kandahar. [59] In Particular, Omar, 
		who was born into poverty and was virtually uneducated, seems to have 
		worked closely with Osama bin Laden, who shared with Omar a vision of an 
		international Islamic revolution. [60]
 
 Al Qaeda also provided substantial material assistance to the Taliban 
		militia. It made large sums available to Taliban leaders, and supplied 
		them with "a steady stream of guerrilla fighters to assist the Taliban 
		in their continuing battles with the Northern Alliance." [61] Because 
		the Taliban was not equipped to maintain control over Afghanistan in the 
		face of armed opposition from other factions, the Taliban became 
		increasingly dependent on the money, weapons, recruits, and well-trained 
		soldiers provided to it by al Qaeda. Al Qaeda in turn depended on the 
		Taliban to provide it with bases for training camps and a refuge from 
		the United States. Over the course of his dealings with it, bin Laden 
		"pumped tens of millions of dollars into the Taliban, provided it with 
		his most elite Arab fighting forces, and integrated his Qaeda network 
		into key portfolios within the Taliban government… [T]he two [movements] 
		had long since melded together as one, through money, combat, and a 
		shared radical interpretation of Islam." [62] Further, both because al 
		Qaeda was capable of mustering more formidable military forces than the 
		Taliban at any given point, and because failure to protect bin Laden 
		would have cost the Taliban the support of radical Islamists, it may 
		well have been impossible for the Taliban to surrender bin Laden as 
		directed by the United Nations, even if it had been willing to do. [63] 
		In any event, by continuing to harbor bin Laden and al Qaeda and to 
		assist them in material ways, the Taliban became complicit in its 
		terrorist acts. Taking all these facts into account, together with other 
		non-public information that may be available to the Executive, we think 
		it fair to characterize the Taliban militia as functionally intertwined 
		with al Qaeda, and therefore on the same footing as al Qaeda under the 
		Geneva Conventions.
 
 C. Implications Under the Geneva Conventions
 
 Whether bases on the view that Afghanistan was a failed State or on the 
		view that Taliban was functionally indistinguishable from al Qaeda, the 
		view that Afghanistan had ceased to be a party to the Geneva Conventions 
		has two immediate ramifications. First, common Article 2 – and thus most 
		of the substance of the Geneva Conventions - would not apply to the 
		members of the Taliban militia, because that provision only applies to 
		international wars between two State Parties to the Conventions. Second, 
		even common Article 3’s basic standards would not apply. This would be 
		so, not only because the current conflict is not a non-international 
		conflict subject to Article 3, but also because common Article 3 
		concerns only a non-international conflict that occurs "in the territory 
		of one of the High Contracting Parties" (emphasis added). If Afghanistan 
		was not a High Contracting Party during the time of the conflict, then a 
		non-international conflict within its territory does not fall within the 
		terms of Article 3.
 
 We have considered the argument that, even if our conclusions held 
		during the period when Afghanistan was largely under the Taliban’s 
		control (and thus in a condition of statelessness), they have ceased to 
		hold in light of the Bonn Agreement. Afghanistan now has an 
		internationally recognized government, and on that basis it might be 
		argued that it has resumed its status as a High Contracting Party under 
		the Geneva Conventions. It could then be argued that the protections of 
		those Conventions – including the protections for prisoners of war – now 
		clothe the Taliban militia, even if they did not during the Taliban’s 
		ascendancy.
 
 This reasoning would be mistaken. First, even if Afghanistan now has a 
		recognized government, it does not necessarily follow that its status as 
		a party to the Conventions has been completely restored. Afghanistan 
		still may not be in a position to fulfill its Convention 
		responsibilities, and thus should not yet be accorded party status under 
		the Conventions. [64] Thus, even though Germany had some form of 
		government when the Supreme Court decided Clark v. Allen in 1947, the 
		Court declared that whether Germany was "in a position to perform its 
		treaty obligations" [65] was a political question, meaning that it 
		remained open for the President to decide whether the treaty with 
		Germany was in effect. We expect that the courts would properly 
		recognize that it rests solely within the President’s constitutional 
		authority to determine whether Afghanistan has yet returned to the 
		status of a state party to the Conventions.
 
 Second, the jurisdictional provisions of the Conventions (common 
		Articles 2 and 3) still remain inapplicable to the conflict between the 
		United States and the Taliban militia. This is the case even assuming 
		that, with the substantial cessation of that conflict, the status of 
		Afghanistan as a party to the Conventions has been restored. Article 2 
		states that the Convention shall apply to all cases of declared war or 
		other armed conflict between the High Contracting Parties. But there was 
		no war or armed conflict between the United States and Afghanistan 
		during the period before the Bonn Agreement if Afghanistan was stateless 
		at that time. Nor, of course, is there a state of war or armed conflict 
		between the United States and Afghanistan now. Likewise, Article 3 
		states that certain basic standards shall apply in the case of "an armed 
		conflict not of an international character occurring in the territory of 
		one of the High Contracting Parties." The most natural reading of this 
		provision is that the conflict must have occurred in the territory of a 
		State that was a High Contracting Party at the time of the conflict. So 
		understood, Article 3 would not apply to the conflict with the Taliban. 
		[66] 
		Because the jurisdictional provisions remain inapplicable even if 
		Afghanistan’s status as a Convention party has been restored, Taliban 
		prisoners remain outside the protections of the Conventions. As a 
		result, they do not, for example, fall under the definition of 
		"prisoners of war" in Geneva Conventions III, art. 4.
 
 Furthermore, even apart from the question whether Afghanistan was or 
		remains a failed state, there are specific reasons why Geneva Convention 
		III, relating to POWs, would not apply to captured Taliban militia. 
		First, Article 4 of Geneva Convention III enumerates particular 
		categories of persons who are entitled to POW status. In our judgment, 
		Taliban captives do not fall within any of these categories, including 
		that of Article 4(A)(3), "Members of regular armed forces who profess 
		allegiance to a government or an authority not recognized by the 
		Detaining Power." As we have discussed, the United Nations and almost 
		all members of the world community, including the United States, refused 
		to recognize the Taliban militia as the government of Afghanistan. Of 
		the handful of States that did recognize it, all but Pakistan withdrew 
		their recognition soon after the start of the conflict, and Pakistan 
		later followed suit. Thus, the Taliban cannot even be considered "a 
		government or authority" at all for purposes of this provision, since no 
		other state in the world viewed the Taliban militia as qualifying as 
		one. According the Taliban militia the status of the armed forces of a 
		government, even when no other country in the world considered it as 
		such, would be tantamount to allowing any political or violent movement 
		to simply declare itself to be a government. Enjoyment of the rights and 
		duties of a sovereign state should not be so easily accorded as by 
		self-identification.
 
 Second, even if a political group or movement could be considered to be 
		"a government or authority" within the meaning of Article 4(A)(3), that 
		group or movement would have to demonstrate that it considered itself 
		bound by Geneva Convention III in order to be in a position to claim the 
		Convention’s benefits. Your Department, however, informs us that the 
		Taliban militia failed to confirm its acceptance of the Geneva 
		Conventions, did not fulfill its obligations, and it did not act 
		consistently with the most fundamental obligations of the laws of war, 
		such as the prohibition on using civilians to shield military forces.
 
 Third, even if the Taliban considered themselves to be a party to Geneva 
		Conventions III, or even if they had stated publicly that they would 
		comply with that Convention’s provisions and in fact did so, Taliban 
		captives would still have to meet other requirements of Article 4, to be 
		entitled to POW status. For example, Article 4(A)(3) only covers "[m]embers 
		of regular armed forces" (emphasis added). The Taliban militia, it 
		seems, cannot be so characterized. To be sure, Article 4(A)(2) accords 
		POW status to persons who are not in regular armed forces – i.e., "[m]embers 
		of other militias and members of other voluntary corps, including those 
		of organized resistance movements." Nevertheless, Article 4 makes clear 
		that these combatants are only afforded POW status if they meet certain 
		conditions, including "that of being commanded by a person responsible 
		for his subordinates," "that of having a fixed distinctive sign 
		recognizable at a distance," and "that of conducting their operations in 
		accordance with the laws and customs of war." Your Department advises us 
		that the Taliban militia’s command structure probably did not meet the 
		first of these requirements; that the evidence strongly indicates that 
		the requirement of a distinctive uniform was not met; and that the 
		requirement of conducting operations in accordance with the law and 
		customs of armed conflict was not met. Accordingly, we think that 
		Taliban captives do not qualify for POW status either as members of 
		regular armed forces or as combatants of other kinds covered by the 
		Convention. [67]
 
 D. Historical Application of the Geneva Conventions
 
		We conclude by addressing a point 
		of considerable significance. To say that the specific provision of the 
		Geneva and Hague Conventions do not apply in the current conflict with 
		the Taliban militia as a legal requirement is by no means to say that 
		the principles of the law of armed conflict cannot be applied as a 
		matter of U.S. Government policy. The President as Commander in Chief 
		can determine as a matter of his judgment for the efficient prosecution 
		of the military campaign that the policy of the United States will be to 
		enforce customary standards of the law of war against the Taliban and to 
		punish any transgressions against those standards. Thus, for example, 
		even though Geneva Convention III may not apply, the United States may 
		deem it a violation of the laws and usages of war for Taliban troops to 
		torture any American prisoners whom they may happen to seize. The U.S. 
		military thus could prosecute Taliban militiamen for war crimes for 
		engaging in such conduct. [68] A decision to apply the principles of the 
		Geneva Conventions or of other laws of war as a matter of policy, not 
		law, would be fully consistent with the past practice of the United 
		States.
 United States practice in post-1949 conflicts reveals several instances 
		in which our military forces have applied the Geneva Conventions as a 
		matter of policy, without acknowledging any legal obligation to do so. 
		These cases include the Wars in Korea and Vietnam and the interventions 
		in Panama and Somalia.
 
 Korea. The Korean War broke out on June 25, 1950, before any of 
		the major State parties to the conflict (including the United States) 
		had ratifies the Geneva Conventions. Nonetheless, General Douglass 
		MacArthur, the United Nations Commander in Korea, said that his forces 
		would comply with the principles of the Geneva Conventions, including 
		those relating to POWs. MacArthur stated: "My present instructions are 
		to abide by the humanitarian principles of the 1949 Geneva Conventions, 
		particularly common Article three. In addition, I have directed the 
		forces under my command to abide by the detailed provisions of the 
		prisoner-of-war convention, since I have the means at my disposal to 
		assure compliance with this convention by all concerned and have fully 
		accredited the ICRC delegates accordingly." [69]
 
 Viet Nam. The United States through the State Department took the 
		position that the Geneva Convention III "indisputable applies to the 
		armed conflict in Viet Nam," and therefore that "American military 
		personnel captured in the course of that armed conflict are entitled to 
		be treated as prisoners of war." [70] We understand from the Defense 
		Department that our military forces, as a matter of policy, decided at 
		some point in the conflict to accord POW treatment (but not necessarily 
		POW status) to Viet Cong members, despite the fact that they often did 
		not meet the criteria for that status (set forth in Geneva Convention 
		III, art. 4), e.g., by not wearing uniforms or any other fixed 
		distinctive signs visible at a distance.
 
 Panama. The United States’ intervention in Panama on December 20, 
		1989 came at the request and invitation of Panama’s legitimately elected 
		President, Guillermo Endara. [71] The United States had never recognized 
		General Manuel Noriega, the commander of the Panamanian Defense Force, 
		as Panama’s legitimate ruler. Thus, in the view of the executive branch, 
		the conflict was between the Government of Panama assisted by the United 
		States on the one side and insurgent forces loyal to General Noriega on 
		the other. It was not an international armed conflict between the United 
		States and Panama, another State. Accordingly, it was not, in the 
		executive’s judgment an international armed conflict governed by common 
		Article 2 of the Geneva Conventions. [72] Nonetheless, we understand 
		that, as a matter of policy, all persons captured or detained by the 
		United States in the intervention – including civilians and members of 
		paramilitary forces as well as members of the Panamanian Defense Force – 
		were treated consistently with the Geneva Convention III, until their 
		precise status under that Convention was determined. A 1990 letter to 
		the Attorney General from the Legal Advisor to the State Department said 
		that "[I]t should be emphasized that the decision to extend basic 
		prisoner of war protections to such persons was based on strong policy 
		considerations, and was not necessarily based on any conclusion that the 
		United States was obligated to do so as a matter of law." [73]
 
 Interventions in Somalia, Haiti and Bosnia. There was 
		considerable factual uncertainty whether the United Nations Operation in 
		Somalia in late 1992 and early 1993 rose to the level of an "armed 
		conflict" that could be subject to common Article 3 of the Geneva 
		Conventions, particularly after the United Nations Task Force abandoned 
		its previously neutral role and took military action against a Somali 
		warlord, General Aideed. Similar questions have arisen in other peace 
		operations, including those in Haiti and Bosnia. It appears that the 
		U.S. military has decided, as a matter of policy, to conduct operations 
		in such circumstances as if the Geneva Conventions applied, regardless 
		of whether there is any legal requirement to do so. The U.S. Army 
		Operational Law Handbook, after noting that "[I]n peace operations such 
		as those in Somalia, Haiti and Bosnia, the question frequently arises 
		whether the [law of war] legally applies" states that it is "the 
		position of the US, UN, and NATO that their forces will apply the 
		‘principles and spirit’ of the [law of war] in these operations." [74]
 
 E. Suspension of The Geneva Convention as to Afghanistan
 
 Even if Afghanistan under the Taliban were not deemed to have been a 
		failed State, the President could still regard the Geneva Conventions as 
		temporarily suspended during the current military` action. As a 
		constitutional matter, the President has the power to consider 
		performance of some or all of the obligations of the United States under 
		the Conventions suspended. Such a decision could be based on the finding 
		that Afghanistan lacked the capacity to fulfill its treaty obligations 
		or (if supported by the facts) on the finding that Afghanistan was in 
		material breach of its obligations.
 
 As the Nation’s representative in foreign affairs, the President has a 
		variety of constitutional powers with respect to treaties, including the 
		powers to suspend them, withhold performance of them, contravene them or 
		terminate them. The treaty power is fundamentally an executive power 
		established in Article II of the Constitution, and therefore power over 
		treaty matters after advice and consent by the Senate are within the 
		President’s plenary authority. We have recently treated these questions 
		in detail, and rely upon that advice here. [75]
 
 The courts have often acknowledged the President’s constitutional powers 
		with respect to treaties. Thus, it has long been accepted that the 
		President may determine whether a treaty has lapsed because a foreign 
		State has gained or lost its independence, or because it had undergone 
		other changed in sovereignty. [76] Nonperformance of a particular treaty 
		obligation may, in the President’s judgment, justify withholding 
		performance of one of the United States’ treaty obligations, or 
		contravening the treaty. [77] Further, the President may regard a treaty 
		as suspended for several reasons. For example, he may determine that 
		"the conditions essential to [the treaty’s] continued effectiveness no 
		longer pertain." [78] The President may also determine that a material 
		breach of a treaty by a foreign government has rendered a treaty not 
		merely voidable, but void, as to that government. [79]
 
 The President could justifiably exercise his constitutional authority 
		over treaties by regarding the Geneva Conventions as suspended in 
		relation to Afghanistan. The basis for such a determination would be a 
		finding that under that Taliban militia, Afghanistan committed grave 
		violations of international law and maintained close relationships with 
		international terrorist organizations such as al Qaeda, which have 
		attacked wholly civilian targets by surprise attack. As a result, 
		Afghanistan under the Taliban could be held to have violated basic 
		humanitarian duties under the Geneva Conventions and other norms of 
		international law. Nonperformance of such basic duties could be taken to 
		have demonstrated that Afghanistan could not be trusted to perform its 
		commitments under the Conventions during the current conflict. [80] 
		After the conflict, the President determine that relations under the 
		Geneva Conventions with Afghanistan had been restored, once an Afghan 
		government that was willing and able to execute the country’s treaty 
		obligations was securely established. Furthermore, if evidence of other 
		material breaches of the Conventions by Afghanistan existed, that 
		evidence could also furnish a basis for the President to decide to 
		suspend performance of the United States’ Convention obligations. A 
		decision to regard the Geneva Conventions as suspended would not, of 
		course, constitute a "denunciation" of the Conventions, for which 
		procedures are prescribed in the Conventions. [81] The President need 
		not regard the Conventions as suspended in their entirety, but only in 
		part. [82]
 
 Although the United States has never, to our knowledge, suspended my 
		provision of the Geneva Conventions, it is significant that on at least 
		two occasions since 1949 – the Korean War and the Persian Gulf War – its 
		practice has deviated from the clear requirements of Article 118 of 
		Geneva Convention III. That Article prescribes the mandatory 
		repatriation of POWs after the cessation of a covered conflict. [83] 
		Although on both occasions the POWs themselves sought to avoid 
		repatriation, Geneva Convention III provides that a POW may "in no 
		circumstances renounce in part or in entirety" the right to 
		repatriation. Moreover, the negotiating history of the Convention 
		reveals that a proposal to make POW repatriation voluntary was 
		considered and rejected, in large part on the ground that it would work 
		to the detriment of the POWs. [84] Consequently, withholding of 
		repatriation, even with the consent of the POWs, represented a deviation 
		from the Convention’s strict norms.
 
 Korea. The Korean War broke out on June 25, 1950, before any of 
		the major State parties to the conflict (including the United States) 
		had ratified the Geneva Conventions. Nonetheless, the principle of 
		repatriation of POWs had long been rooted in treaty and customary 
		international law, including Article 20 of the Annex to Hague Convention 
		IV, which states that "[a]fter the conclusion of peace, the repatriation 
		of prisoners of war shall be carried out as quickly as possible." [85] 
		Large numbers of Chinese and North Korean POWs held by the United 
		Nations did not wish to be repatriated, however, and special provisions 
		for them (and for a small number of United Nations POWs in Communist 
		hands) were made under the Armistice of July 27, 1953. "To supervise the 
		repatriation, the armistice created a Neutral nations Repatriation 
		Commission, composed of representatives from Sweden, Switzerland, 
		Poland, Czechoslovakia, and India. Within sixty days of signing the 
		Armistice, prisoners who desired repatriation were to be directly 
		repatriated in groups to the side to which they belonged at the time of 
		their capture. Those prisoners not so repatriated were to be released to 
		the Neutral Nations Repatriation Commission… for further disposition. 
		[86] Altogether approximately 23,000 POWs refused repatriation. The 
		majority (not quite 22,000) eventually went to Taiwan. [87]
 
 The Persian Gulf War. At the cessation of hostilities in the 
		Persian Gulf War, some 13,418 Iraqi POWs held by Allied forces were 
		unwilling to be repatriated for fear of suffering punishment from their 
		government for having surrendered. Notwithstanding the repatriation 
		mandate of Geneva Convention III, the United States and its Allies 
		executed an agreement with Iraq providing for only voluntary 
		repatriation through a program administered by the International 
		Committee of the Red Cross. [88]
 
 F. Suspension Under International Law
 
 Although the United States may determine either that Afghanistan was a 
		failed State that could not be considered a party to the Geneva 
		Conventions, or that the Geneva Conventions should otherwise be regarded 
		as suspended under the present circumstances, there remains the distinct 
		question whether such determinations would be valid as a matter of 
		international law. [89] We emphasize that the resolution of that 
		question, however, has no bearing on domestic constitutional issues, or 
		on the application of the WCA. Rather, these issues are worth 
		consideration as a means of justifying the actions of the United States 
		in the world of international politics. While a close question, we 
		believe that the better view is that, in certain circumstances, 
		countries can suspend the Geneva Conventions consistently with 
		international law.
 
 International law has long recognized that the material breach of a 
		treaty can be grounds for the party injured by the breach to terminate 
		or withdraw from the treaty. [90] Under customary international law, the 
		general rule is that breach of a multilateral treaty by a State Party 
		justifies the suspension of that treaty with regard to that State. "A 
		material breach of a multilateral treaty by one of the parties entitles… 
		[a] party specifically affected by the breach to invoke it as a ground 
		for suspending the operation of the treaty in whole or in part in the 
		relations between itself and the defaulting State." [91] Assuming that 
		Afghanistan could have been found to be in material breach for having 
		violated "a provision essential to the accomplishment of the object or 
		purpose of the [Geneva Conventions]," suspension of the Conventions 
		would have been justified. [92]
 
 We note, however, that these general rules authorizing suspension do not 
		apply to provisions relating to the protection of the human person 
		contained in treaties of a humanitarian character, in particular to 
		provisions prohibiting any form of reprisals against persons protected 
		by such treaties. [93] Although the United States is not a party to the 
		Vienna Convention, some lower courts have said that the Convention 
		embodies the customary international law of treaties and the State 
		department has at various times taken the same view. [94] The Geneva 
		Conventions must be regarded as "treaties of a humanitarian character," 
		many of whose provisions relate to the protection of the human 
		person." [95] Arguably, therefore, a determination by the United States 
		that the Geneva Conventions were inoperative as to Afghanistan or a 
		decision to regard them as suspended, might put the United States in 
		breach of customary international law.
 
 In addition, the Geneva Conventions could themselves be read to preclude 
		suspension. Common Article 1 pledges the High Contracting Parties "to 
		respect and to ensure respect for the present Convention in all 
		circumstances" (emphasis added). Some commentators argue that this 
		provision should be read to bar any State party from refusing to enforce 
		their provisions, no matter the conduct of its adversaries. In other 
		words, the duty of performance is absolute and does not depend upon 
		reciprocal performance by other State parties. [96] Under this approach 
		the substantive terms of the Geneva Conventions could never be 
		suspended, and thus any violation would always be illegal under 
		international law.
 
 This understanding of the Vienna and Geneva Conventions cannot be 
		correct. There is no textual provision in the Geneva Conventions that 
		clearly prohibits temporary suspension. The drafters included a 
		provision that appears to preclude State parties from agreeing to 
		absolve each other of violations. [97] They also included careful 
		procedures for the termination of the agreements by individual State 
		parties, including a provision that requires delay of a termination of a 
		treaty, if that termination were to occur during a conflict, until the 
		end of the conflict. [98] Yet, at the same time, the drafters of the 
		Conventions did not address suspension at all, even though it has been a 
		possible option since at least the eighteenth century. [99] Applying the 
		canon of interpretation expressio unius est exclusio alterius, that the 
		inclusion of one thing implies the exclusion of the other, we should 
		presume that the State parties did not intend to preclude suspension. 
		Indeed, if the drafters and ratifiers of the Geneva Conventions believed 
		the treaties could not be suspended, while allowing for withdrawal and 
		denunciation, they could have said so explicitly and easily in the text.
 
 The text of the Conventions also makes it implausible to claim that all 
		obligations imposed by the Geneva Convention are absolute and that 
		non-performance is never excusable. To begin with, the Conventions 
		themselves distinguish "grave" breaches from others. They further 
		provide that "[n]o High Contracting Party shall be allowed to absolve 
		itself… of any liability incurred by itself… in respect of [grave] 
		breaches." [100] If all of the obligations imposed by the conventions 
		were absolute and unqualified, it would serve its purpose to distinguish "grave" 
		breaches from others, or to provide explicitly that no party could 
		absolve itself from liability for grave breaches. Furthermore, although 
		specific provisions of the Conventions rule out "reprisals" of 
		particular kinds, [101] they do not rule out reprisals as such. Thus, 
		Article 13 of Geneva Convention III, while defining certain misconduct 
		with respect to prisoners of war as constituting a "serious breach" of 
		the Convention, also states categorically that "[m]easures of reprisal 
		against prisoners of war are prohibited." (emphasis added). Similarly, 
		Article 60(5) of the Vienna Convention on Treaties states that the usual 
		rules permitting treaty suspension in some instances "do not apply to 
		provisions relating to the protection of the human person contained in 
		treaties of a humanitarian character, in particular to provisions 
		prohibiting any form of reprisals against persons protected by such 
		treaties" (emphasis added). That provision seems to be an implicit 
		prohibition only of a particular class of reprisals, not of all 
		reprisals. Accordingly, it appears to be permissible, as a matter both 
		of treaty law and of customary international law, to suspend performance 
		of Geneva Convention obligations on a temporary basis. It also appears 
		permissible to engage in reprisals in response to material breaches by 
		an enemy, provided that the reprisals do not give rise to "grave" 
		breaches or to reprisals against protected persons.
 
 Finally, a blanket non-suspension rule makes little sense as a matter pf 
		international law and politics. If there were such a rule, international 
		law would leave an injured party effectively remediless if its 
		adversaries committed material breaches of the Geneva Conventions. Apart 
		from its unfairness, that result would reward and encourage 
		non-compliance with the Conventions. True, the Conventions appear to 
		contemplate that enforcement will be promoted by voluntary action of the 
		parties. [102] Furthermore, the Conventions provide for intervention by 
		"the International Committee of the Red Cross or any other impartial 
		humanitarian organization… subject to the consent of the Parties to the 
		conflict concerned." [103] But the effectiveness of these provisions 
		depends on the good will of the very party assumed to be committing 
		material breaches, or on its sensitivity to international opinion. 
		Likewise, the provision authorizing an impartial investigation of 
		alleged violations also hinges on the willingness of a breaching party 
		to permit the investigation and to abide by its result. Other 
		conceivable remedies, such as the imposition of an embargo by the United 
		Nations on the breaching party, may also be inefficacious in particular 
		circumstances. If, for example, Afghanistan were bound by Geneva 
		Convention III to provide certain treatment to United States prisoners 
		of war but in fact materially breached such duties, a United Nations 
		embargo might have little effect on its behavior. Finally, offenders 
		undoubtedly face a risk of trial and punishment before national or 
		international courts after the conflict is over. Yet that form of relief 
		presupposes that the offenders will be subject to capture at the end of 
		the conflict – which may well depend on whether or not they have been 
		defeated. Reliance on post-conflict trials, as well as being uncertain, 
		defers relief for the duration of the conflict. Without a power to 
		suspend, therefore, parties to the Geneva Conventions would only be left 
		with these meager tools to remedy widespread violation of the Convention 
		by others.
 
 Thus, even if one were to believe that international law set out fixed 
		and binding rules concerning the power of suspension, the United States 
		could make convincing arguments under the Geneva Conventions itself, the 
		Vienna Convention on Treaties, and Customary international law in favor 
		of suspending the Geneva Conventions as applied to the Taliban militia 
		in the current war in Afghanistan.
 
 IV. The Customary International Laws of War
 
 So far, this memorandum has addressed the issue whether the Geneva 
		Conventions and the WCA, apply to the detention and trial of al Qaeda 
		and Taliban militia members taken prisoner in Afghanistan. Having 
		concluded that these laws do not apply, we turn to your question 
		concerning the effect, if any, of customary international law. Some may 
		take the view that even if the Geneva Conventions, by their terms, do 
		not govern the conflict in Afghanistan, the substance of these 
		agreements have received such universal approval that it has risen to 
		the status of customary international law. Regardless of its substance, 
		however, customary international law cannot bind the executive branch 
		under the Constitution because it is not federal law. This is a view 
		that this Office has expressed before, [104] and is one consistent with 
		the views of the federal courts, [105] and with executive branch 
		arguments in the courts. [106] As a result, any customary international 
		law of armed conflict in no way binds, as a legal matter, the President 
		or the U.S. Armed Forces concerning the detention or trial of members of 
		al Qaeda and the Taliban.
 
 A. Is Customary International Law Federal Law?
 
		Under the view promoted by many 
		international law academics, any presidential violation of customary 
		international law is presumptively unconstitutional. [107] These 
		scholars argue that customary international law is federal law, and that 
		the President’s Article II duty under the Take Care Clause requires him 
		to execute customary international law as well as statutes lawfully 
		enacted under the Constitution. A President may not violate customary 
		international law, therefore, just as he cannot violate a statute, 
		unless he believes it to be unconstitutional. Relying upon cases such as 
		The Paquete Habana, 175 U.S. 677, 700 (1900), in which the Supreme Court 
		observed that "international law is part of our law," this position 
		often claims that the federal judiciary has the authority to invalidate 
		executive action that runs counter to customary international law. [108]
 This view of customary international law is seriously mistaken. The 
		constitutional text nowhere brackets presidential or federal power 
		within the confines of international law. When the Supremacy Clause 
		discusses the sources of federal law, it enumerates only this 
		Constitution, and the Laws of the United States which shall be made in 
		Pursuance thereof and all Treaties made, or which shall be made, under 
		the Authority of the United States. U.S. Const. art. VI. International 
		law is nowhere mentioned in the Constitution as an independent source of 
		federal law or as a constraint on the political branches of government. 
		Indeed, if it were, there would have been no need to grant to Congress 
		the power to "define and punish… Offenses against the Law of Nations." 
		[109] It is also clear that the original understanding of the Framers 
		was that "Laws of the United States" did not include the law of nations, 
		as international law was called in the late eighteenth century. In 
		explaining the jurisdiction of the Article III courts to cases arising 
		"under the Constitution and the Laws of the United States," for example, 
		Alexander Hamilton did not include the Law of nations as a source of 
		jurisdiction. [110] Rather, Hamilton pointed out, claims involving the 
		laws of nations would arise either in diversity cases or maritime cases, 
		[111] which by definition do not involve "the Laws of the United 
		States." Little evidence exists that those who attended the Philadelphia 
		Convention in the summer of 1787 or the state ratifying conventions 
		believed that federal law would have included customary international 
		law, but rather that the law of nations was part of a general common law 
		that was not true federal law. [112]
 
 Indeed, allowing customary international law to rise to the level of 
		federal law would create sever distortions in the structure of the 
		Constitution. Incorporation of customary international law directly into 
		federal law would bypass the delicate procedures established by the 
		Constitution for amending the Constitution or for enacting legislation. [113] 
		Customary international law is not approved by two-thirds of 
		Congress and three-quarters of the state legislatures, it has not been 
		passed by both houses of Congress and signed by the President, nor is it 
		made by the President with the advice and consent of two-thirds of the 
		Senate. In other words, customary international law has not undergone 
		the difficult hurdles that stand before enactment of constitutional 
		amendments, statutes, or treaties. As such, it can have no legal effect 
		on the government or on American citizens because it is not law. [114] 
		Even the inclusion of treaties in the Supremacy Clause does not render 
		treaties automatically self-executing in federal court, not to mention 
		self-executing against the executive branch. [115] If even treaties that 
		have undergone presidential signature and senatorial advice and consent 
		can have no binding legal effect in the United States, then it certainly 
		must be the case that a source of rules that never undergoes any process 
		established by our Constitution cannot be law. [116]
 
 If it is well accepted that the political branches have ample authority 
		to override customary international law within their respective spheres 
		of authority. This has been recognized by the Supreme Court since the 
		earliest days of the Republic. In The Schooner Exchange v. McFaddon, for 
		example, Chief Justice Marshall applied customary international law to 
		thee seizure of a French warship only because the United States 
		government had not chosen a different rule.
 
		It seems then to the Court o be a 
		principle public [international] law, that national ships of war, 
		entering the port of a friendly power open for their reception, are to 
		be considered as exempted by the consent of that power from its 
		jurisdiction. Without doubt, the sovereign of the place is capable of 
		destroying this implication. He may claim and exercise jurisdiction 
		either by employing force, or by subjecting such vessels to the ordinary 
		tribunals. [117] 
		In Brown v. United States, 12 U.S. 
		(8 Cranch) 110 (1814), Chief Justice Marshall again stated that 
		customary international law "is a guide which the sovereign follows or 
		abandons at his will. The rule, like other precepts of morality, of 
		humanity, and even of wisdom, is addressed to the judgment of the 
		sovereign; and although it cannot be disregarded by him without obloquy, 
		yet it may be disregarded." [118] In twenty-first century words, 
		overriding customary international law may prove to be a bad idea, or be 
		subject to criticism, but there is no doubt that the government has the 
		power to do it. 
 Indeed, proponents of the notion that customary international law 
		is federal law can find little support in either history or Supreme Court case law. 
		It is true that in some contexts mostly involving maritime, insurance, 
		and commercial law, the federal courts in the nineteenth century looked 
		to customary international law as a guide. [119] Upon closer examination 
		of these cases, however, it is clear that customary international law 
		had the status only of the general federal common law that was applied 
		in federal diversity cases under Swift v. Tyson, 41 U.S. (16 Fet.) 1 
		(1842). As such it was not considered true federal law under the 
		Supremacy Clause, it did not support Article III "arising under" 
		jurisdiction; it did not pre-empt inconsistent state law and it did not 
		bind the executive branch. Indeed, even during this period the Supreme 
		Court acknowledged that the laws of war did not qualify as true federal 
		law and could not therefore serve as the basis for federal subject 
		matter jurisdiction. In New York Life Ins. Co v. Hendren 92 U.S. 286, 
		for example, the Supreme Court declared that it had no jurisdiction to 
		review the general laws of war, as recognized by the law of nations 
		applicable to this case, because such laws do not involve the 
		constitution, laws, treaties, or executive proclamations of the United 
		States. [120] The spurious nature of this type of law led the Supreme 
		Court in the famous case of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 
		(1938), to eliminate general federal common law.
 
 Even the case most relied upon by proponents of customary international 
		law’s status as federal law. The Paquete Habana, itself acknowledges 
		that customary international law is subject to override by the action of 
		the political branches. The Paquete Habana involved the question whether 
		U.S. armed vessels in wartime could capture certain fishing vessels 
		belonging to enemy nationals and sell them as a prize. In that case, the 
		Court applied an international law rule, and did indeed say that 
		"international law is part of our law." [121] But Justice Gray then 
		continued, "where there is no treaty and no controlling executive or 
		legislative act or judicial decision, resort must be had to the customs 
		and usages of civilized nations." In other words, while it was willing 
		to apply customary international law as general federal common law (this 
		was the era of Swift v. Tyson), the court also readily acknowledged that 
		the political branches and even the federal judiciary could override it 
		at any time. No Supreme Court decision in modern times has challenged 
		that view. [122] Thus, under clear Supreme Court precedent, any 
		presidential decision in the current conflict concerning the detention 
		and trial of al Qaeda or Taliban militia prisoners would constitute a "controlling" 
		executive act that would immediately and completely override any 
		customary international law norms.
 
 Constitutional text and Supreme Court decisions aside, allowing the 
		federal courts to rely upon international law to restrict the 
		President’s discretion to conduct war would raise deep structural 
		problems. First, if customary international law is indeed federal law, 
		then it must receive all of the benefits of the Supremacy Clause. 
		Therefore, customary international law would not only bind the 
		President, but it also would pre-empt state law and even supersede 
		inconsistent federal statutes and treaties that were enacted before the 
		rule of customary international law came into being. This has never 
		happened. Indeed, giving customary international law this power not only 
		runs counter to the Supreme Court cases described above, but would have 
		the effect of importing a body of law to restrain the three branches of 
		American government that never underwent any approval by our democratic 
		political process. If customary international law does not have these 
		effects, as the constitutional text, practice and most sensible readings 
		of the Constitution indicate, then it cannot be true federal law under 
		the Supremacy Clause. As non-federal law, then, customary international 
		law cannot bind the President or the executive branch, in any legally 
		meaningful way, in its conduct of the war in Afghanistan.
 
 Second, relying upon customary international law here would undermine 
		the President’s control over foreign relations and his Commander in 
		Chief authority. As we have noted, the President under the Constitution 
		is given plenary authority over the conduct of the Nation’s foreign 
		relations and over the use of the military. Importing customary 
		international law notions concerning armed conflict would represent a 
		direct infringement on the President’s discretion as the Commander in 
		Chief Executive to determine how best to conduct the Nation’s military 
		affairs. Presidents and courts have agreed that the President enjoys the 
		fullest discretion permitted by the Constitution in commanding troops in 
		the field. [123] It is difficult to see what legal authority under our 
		constitutional system would permit customary international law to 
		restrict the exercise of the President’s plenary power in this area, 
		which is granted to him directly by the Constitution. Further, reading 
		customary international law to be federal law would improperly inhibit 
		the President’s role as the representative of the Nation in its foreign 
		affairs. [124] Customary law is not static, it evolves through a dynamic 
		process of State custom and practice. "States necessarily must have the 
		authority to contravene international norms, however, for it is the 
		process of changing state practice that allows customary international 
		law to envolve." [125] we observed in 1989, "[i]f the United States is to 
		participate in the evolution of international law the Executive must 
		have the power to act inconsistently with international law where 
		necessary." [126] The power to override or ignore customary 
		international law, even the law applying to armed conflict, is "an 
		integral part of the President’s foreign affairs power." [127]
 
 Third, if customary international law is truly federal law, it 
		presumably must be enforceable by the federal courts. Allowing 
		international law to interfere with the President’s war power in this 
		way, however, would expand the federal judiciary’s authority into areas 
		where it has little competence, where the Constitution does not 
		textually call for its intervention, and where it risks defiance by the 
		political branches. Indeed, treating customary international law as 
		federal law would require the judiciary to intervene into the most 
		deeply of political questions, those concerning war. Thus, the federal 
		courts have said they will not do, most notably during the Kosovo 
		conflict. [128] Again, the practice of t he branches demonstrates that 
		they do not consider customary international law to be federal law. this 
		position makes sense even at the level of democratic theory, because 
		conceiving of international law as a restraint on warmaking would allow 
		norms of questionable democratic origin to constrain actions validly 
		taken under the U.S. Constitution by popularly accountable national 
		representatives.
 
 Based on these considerations of constitutional text, structure, and 
		history, we conclude that any customary rules of international law that 
		apply to armed conflicts do not bind the President or the U.S. Armed 
		Forces in their conduct of war in Afghanistan.
 
		B.  Do the Customary Laws 
		of War Apply to al Qaeda or the Taliban Militia? 
		Although customary international 
		law does not bind the President, the President may still use his 
		constitutional warmaking authority to subject members of al Qaeda or the 
		Taliban militia to the laws of war. While this result may seem at first 
		glance to be counter intuitive, it is a product of the President’s 
		Commander in Chief Executive powers to prosecute the war effectively.
 The President has the legal and constitutional authority to subject both 
		al Qaeda and Taliban to the laws of war, and to try their members before 
		military courts or commissions instituted under Title 10 of the United 
		States Code, if he so chooses. Section 818 of title 10 provides in part 
		that "[g]eneral courts-martial… have jurisdiction to try any person who 
		by the law of war is subject to trial by a military tribunal and may 
		adjudge any punishment permitted by the law of war" (except for capital 
		punishment in certain cases). Section 821 allows for the trial 
		"offenders or offenses that by statute or by the law of war may be tried 
		by military commissions, provost courts, or other military tribunals." 
		We have described the jurisdiction and usage of military tribunals for 
		you in a separate memorandum. We do not believe that these courts would 
		lose jurisdiction to try members of al Qaeda or the Taliban militia for 
		violations of the laws of war, even though we have concluded that the 
		laws of war have no binding effect – as federal law - on the President.
 
 This is so because the extension of the common laws of war to the 
		present conflicts is in essence, a military measure that the President 
		can order a Commander in Chief. As the Supreme Court has recognized, "an 
		important incident to the conduct of war is the adoption of measures by 
		the military command not only to repel and defeat the enemy, but to 
		seize and subject to disciplinary measures those enemies who in their 
		attempt to thwart or impede our military effort have violated the 
		law of war." [129] In another case, the Court observed that in the 
		absence of attempts by Congress to limit the President’s power, it 
		appears that as Commander in Chief of the Army and Navy of the United 
		States, he may, in time of war, establish and prescribe the jurisdiction 
		and procedure of military commissions, and of tribunals in the nature of 
		such commissions, in territory occupied by Armed Forces of the United 
		States. [130] Thus, pursuant to his Commander in Chief authority, the 
		President could impose the laws of war on members of al Qaeda and the 
		Taliban militia as part of measures necessary to prosecute the war 
		successfully.
 
 Moreover, the President’s general authority over the conduct of foreign 
		relations entails the specific power to express the views of the United 
		States both on the content of international law generally and on the 
		application of international law to specific facts. "When articulating 
		principles of international law in its relations with other states, the 
		Executive Branch speaks not only as an interpreter of generally accepted 
		and traditional rules, as would the courts, but also as an advocate of 
		standards it believes desirable for the community of nations and 
		protective of national concerns." [131] Thus, the President can properly 
		find the unprecedented conflict between the United States and 
		transnational terrorist organizations a "war" for the purposed of the 
		customary or common laws of war. Certainly, given the extent of 
		hostilities both in the United States and Afghanistan since the 
		September 11 attacks on the World Trade Center and the Pentagon, the 
		scale of the military, diplomatic and financial commitments by the 
		United States and its allies to counter the terrorist threats, and the 
		expected duration of the conflict, it would be entirely reasonable for 
		the President to find that a condition of "war" existed for purposes of 
		triggering application of the common laws of war. He could also 
		reasonably find that al Qaeda, the Taliban militia, and other related 
		entities that are engaged in conflict with the United States were 
		subject to the duties imposed by those laws. Even if members of these 
		groups and organizations were considered to be merely "private" actors, 
		they could nonetheless be held subject to the laws of war. [132]
 
 In addition, Congress has delegated to the President sweeping authority 
		with respect to the present conflict, and especially with regard to 
		those organizations and individuals implicated in the terrorist attacks 
		of September 11, 2001. In the wake of those incidents Congress 
		enacted Pub. L. No. 107-40, 115 Stat. 224 (2001). Congress found 
		that on September 11, 2001 acts of treacherous violence were 
		committed against the United States and its citizens *** render it both necessary 
		and appropriate that the United States exercise its *** and to 
		protect United States citizens both at home and abroad "and that such 
		acts continue to pose an unusual and extraordinary threat to national 
		security and foreign policy of the United States." Section 2 of the 
		statute authorized the President "to use all necessary and appropriate 
		force against those nations, organizations, or persons be determines, 
		planned, authorized, committed or aided the terrorist attacks that 
		occurred on September 11, 2001, or harbored such organizations or 
		persons, in order to prevent any future acts of international terrorism 
		against the United States by such nations, organizations or persons." 
		Read together with the President’s constitutional authorities as 
		Commander in Chief and as interpreter of international law, this 
		authorization allows the President to subject member of al Qaeda, the 
		Taliban militia, and other affiliated groups to trial and punishment for 
		violations of the common laws of war, if the President determines that 
		it would further the conduct of military operations or contribute to the 
		defense and security of the United States and its citizens.
 
		C.  May a U.S Service 
		member be Tried for Violations of the Laws of War? 
		You have also asked whether the 
		laws of war, as incorporated by reference in title 10 also apply to 
		United States military personnel engaged in armed conflict with al Qaeda 
		or with the Taliban militia. Even though the customary laws of war do 
		not bind the President as federal law, the President may wish to extend 
		some or all of such laws to the conduct of United States military 
		operations in this conflict, or to treatment of members of al Qaeda or 
		the Taliban captured in the conflict. It is within his constitutional 
		authority as Commander in Chief to do so. The common laws of war can be 
		viewed as rules governing the conduct of military personnel in time of 
		combat, and the President has undoubted authority to promulgate such 
		rules and to provide for their enforcement. [133] The Army’s Manual on 
		the Law of Land Warfare, which represents the Army’s interpretation of 
		the customary international law governing armed conflict can be 
		explained, altered, or overridden at any time by presidential act, as 
		the Manual itself recognizes. [134] This makes clear that the 
		source of authority for the application of the customary laws of war to 
		the armed forces arises directly from the President **************** Chief 
		power.
 Moreover, the President has authority to limit or qualify the 
		application of such rules. He could exempt, for example, certain 
		operations from their coverage, or apply some but not all of the common 
		laws of war to this conflict. This, too, is an aspect of the President’s 
		Commander in Chief authority. In narrowing the scope of the substantive 
		prohibitions that apply in a particular conflict, the President may 
		effectively determine the jurisdiction of military courts and 
		commissions. He could thus preclude the trials of United States’ 
		military personnel on specific charges of violations of the common laws 
		of war.
 
 Finally, a presidential determination concerning the application of the 
		substantive prohibitions of the laws of war to the Afghanistan conflict 
		would not preclude the normal system of military justice from applying 
		to members of the U.S. Armed Services. Members of the Armed Services 
		would still be subject to trial by courts martial for any violations of 
		the [U]niform Code of Military Justice (the "UCMJ"). Indeed, if the 
		President were to issue an order, listing certain common laws of war for 
		the military to follow, failure to over that order would constitute an 
		offense under the UCMJ. [135] Thus, although the President is not 
		constitutionally bound by the customary laws of war, he can still chose 
		to require the U.S. Armed Forces to obey them through the UCMJ. Thus, 
		our view that the customary international laws of armed conflict do not 
		bind the President does not, in any way, compel the conclusion that 
		members of the U.S. Armed Forces who commit acts that might be 
		considered war crimes would be free from military justice.
 
 Conclusion
 
 For the foregoing reasons, we conclude that neither the federal War 
		Crimes Act nor the Geneva Conventions would apply to the detention 
		condition in Guantanamo Bay, Cuba, or to trial by military commission of 
		al Qaeda or Taliban Prisoners. We also conclude that customary 
		international law has no binding legal effect on either the President or 
		the military because it is not federal law, as recognized by the 
		Constitution. Nonetheless, we also believe that the President, as 
		Commander in Chief, has the constitutional authority to impose the 
		customary laws of war on both the al Qaeda and Taliban groups and the 
		U.S. Armed Forces.
 
		Please let us know if we can 
		provide further assistance.  
		_______________ 
		Notes: 
		1.  The four Geneva 
		Conventions for the Protection of Victims of War, dated August 12, 1949, 
		were ratified by the United States on July 14, 1955.  These are the 
		Convention for the Amelioration of the Condition of the Wounded and Sick 
		in Armed Forces in the Field, 6 U.S.T. 3115 ("Geneva Convention I"); the 
		Convention for the Amelioration of the Condition of Wounded, Sick and 
		Shipwrecked Members of Armed Forces at Sea, 6 U.S.T. 3219 ("Geneva 
		Convention II"); the Convention Relative to the Treatment of Prisoners 
		of War, 6 U.S.T. 3517 ("Geneva Convention III"); and the Convention 
		Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 
		3317 ("Geneva Convention IV"). 
		2. 
		See Memorandum for William J. Haynes 
		II, General Counsel, Department of Defense, from: Patrick F. Philbin, 
		Deputy Assistant Attorney General, and John Yoo, Deputy Assistant 
		Attorney General, Re:  Possible Habeas Jurisdiction over Aliens 
		Held in Guantanamo Bay, Cuba (Dec. 28, 2001). 
		3.  See generally Memorandum 
		for Albert R. Gonzales, Counsel to the President, from Patrick F. 
		Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, RFe:  
		Legality of the Use of Military Commissions to Try Terrorists (Nov. 6, 
		2001). 
		4.  The rule of lenity 
		requires that the WCA be read so as to ensure that prospective 
		defendants have adequate notice of the nature of the acts that the 
		statute condemns.  See, e.g., Castillo v. United States, 530 U.S. 
		120, 131 (2000).  In those cases in which the application of a 
		treaty incorporated by the WCA is unclear, therefore, the rule of lenity 
		requires that the interpretative issue be resolved in the defendant's 
		favor. 
		5.  That common clause reads 
		as follows: 
		The [signatory Nations] undertake 
		to exact any legislation necessary to provide effective penal sanctions 
		for persons committing, or ordering to be committed, any of the grave 
		breaches of the present Convention ... Each [signatory nation] shall be 
		under the obligation to search for persons alleged to have committed, or 
		to have ordered to be committed, such grave breaches, and shall bring 
		such persons, regardless of their nationality, before its own courts ... 
		It may also, if it prefers ... hand such persons over for trial to 
		another [signatory nation], provided such [nation] has made out a prima 
		facie case. 
		Geneva Convention I, art. 49; 
		Geneva Convention II, art. 50; Geneva Convention III, art. 129; Geneva 
		Convention IV, art. 146. 
		6.  In projecting our 
		criminal law extraterritorially in order to protect victims who are 
		United States nationals, Congress was apparently relying on the 
		international law principle of passive personality.  The passive 
		personality principle "asserts that a state may apply law -- 
		particularly criminal law -- to an act committed outside its territory 
		by a person not its national where the victim of the act was its 
		national."  United States v. Rezaq, 134 F.3d 1121, 1133 (D.C. 
		Cir.), cert. denied, 525 U.S. 834 (1998).  The principle marks 
		recognition of the fact that "each nation has a legitimate interest that 
		its nationals and permanent inhabitants not be maimed or disabled from 
		self-support," or otherwise injured.  Lauritzen v. Larsen, 345 U.S. 
		571, 586 (1953); see also Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 
		309 (1970). 
		7.  In United States ex rel. 
		Toth v. Quaries, 350 U.S. 11 (1955), the Supreme Court had held that a 
		former serviceman could not constitutionally be tried before a court 
		martial under the Uniform Code for Military Justice (the "UCMJ") for 
		crimes he was alleged to have committed while in the armed services. 
		8.  The principle of nationality in 
		international law recognizes that (as Congress did here) a State may 
		criminalize acts performed extraterritorially by its own nationals.  
		See, e.g., Skiriotes v. Florida, 313 U.S. 69, 73 (1941); Steele v. 
		Bulova Watch Co., 344 U.S. 280, 282 (1952). 
		9.  See Trans World Airlines, 
		Inc. v. Franklin Mint Corp., 466 U.S. 243, 253 (1984) ("A treaty is in 
		the nature of a contract between nations."); Teh Head Money Cases, 112 
		U.S. 580, 598 (1884) ("A treaty is primarily a compact between 
		independent nations."); United States ex rel. Saroop v. Garcia, 109 
		F.3d. 165, 167 (3d Cir. 1997) ("[T]reaties are agreements between 
		nations."); Vienna Convention on the Law of Treaties, May 23, 1969, art. 
		2, § 1(a), 1155 U.N.T.S. 331, 333 ("[T]reaty' means an international 
		agreement concluded between States in written form and governed by 
		international law ...") (the "Vienna Convention"); see generally Banco 
		Nacional de Cuba v. Sabbatino, 376 U.S. 398, 422 (1964) ("The 
		traditional view of international law is that it establishes substantive 
		principles for determining whether one country has wronged another."). 
		10.  Article 2's reference to 
		a state of war "not recognized" by a belligerent was apparently intended 
		to refer to conflicts such as the 1937 war between China and Japan.  
		Both sides denied that a state of war existed.  See Joyce A. C. 
		Gutteridge, The Geneva Conventions of 1949, 26 Brit. Y.B. Int'l L. 294, 
		298-99 (1949). 
		11.  Commentary on the 
		Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 
		August 1949, at § 4339 (Yves Sandoz et al. eds., 1987) 
		12. Gutteridge, supra n.10, at 
		300. 
		13.  See Joseph H. Beale, 
		Jr., The Recognition of Cuban Belligerency, 9 Harv. L. Rev. 406, 406 n.1 
		(1896). 
		14.  See The Prosecutor v. 
		Dusko Tidic (Jurisdiction of the Tribunal), (Appeals Chamber of the 
		International Criminal Tribunal for the Former Yugoslavia 1995) (the "ICTY"), 
		105 L.L.R. 453, 504-05 (E. Lamerpacht and C.J. Greenwood eds., 1997). 
		15.  Id. at 505; see also 
		Gerald Irving Draper, Reflections on Law and Armed Conflicts 107 (1998) 
		("Before 1949, in the absence of recognized belligerency accorded to the 
		elements opposed to the government of a State, the law of war ... had no 
		application to internal armed conflicts ... International law had little 
		or nothing to say as to how the armed rebellion was crushed by the 
		government concerned, for such matters fell within the domestic 
		jurisdiction of States.  Such conflicts were often waged with great 
		lack of restraint and cruelty.  Such conduct was a domestic 
		matter."). 
		16.  Tadic, 105 I.L.R. at 
		507.  Indeed, the events of the Spanish Civil War, in which "both 
		the republican Government [of Apain] and third States refused to 
		recognize the [Nationalist] insurgents as belligerents," id. at 507, may 
		be reflected in common Article 3's reference to "the legal status of the 
		Parties to the conflict. 
		17.  See id. at 508. 
		18.  See Draper, Reflections 
		on Law and Armed Conflicts, supra, at 108. 
		19.  An interpretation of 
		common Article 3 that would apply it to all forms of non-international 
		armed conflict accords better with some recent approaches to 
		international humanitarian law.  For example, the Commentary on the 
		Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 
		August 1949, supra, after first stating in the text that Article 3 
		applies when "the government of a single State [is] in conflict with one 
		or more armed factions within its territory," thereafter suggests, in a 
		footnote, that an armed conflict not of an international character "may 
		also exist in which armed factions fight against each other without 
		intervention by the armed forces of the established government."  
		Id. § 4339 at n.2.  A still broader interpretation appears to be 
		supported by the language of the decision of the International Court of 
		Justice (the "ICJ") in Nicaragua v. United States -- which, it should be 
		made clear, the United States refused to acknowledge by withdrawing from 
		the compulsory jurisdiction of the ICJ: 
		Article 3 which is common to all 
		four Geneva Conventions of 12 August 1949 defines certain rules to be 
		applied in the armed conflicts of a non-international character.  
		There is no doubt that, in the event of international armed conflicts, 
		these rules also constitute a minimum yardstick, in addition to the more 
		elaborate rules which are also to apply to international conflicts; and 
		they are rules which, in the Court's opinion, reflect what the Court in 
		1949 called "elementary considerations of humanity." 
		Military and Paramilitary 
		Activities In and Against Nicaragua (Nicaragua v. United States), 
		(International Court of Justice 1986), 76 I.L.R. 1, 448 § 218 (E. 
		Lauterpacht and C.J. Greenwood eds., 1988) (emphasis added).  The 
		ICJ's language is probably best read to suggest that all "armed 
		conflicts" are either international or non-international, and that if 
		they are non-international, they are governed by common Article 3.  
		If that is the correct understanding of the quoted language, however, it 
		should be noted that the result was merely stated as a conclusion, 
		without taking account either of the precise language of Article 3 or of 
		the background to its adoption.  Moreover, while it was true that 
		one of the conflicts to which the ICJ was addressing itself -- "[t]he 
		conflict between the contras' forces and those of the Government of 
		Nicaragua" -- "was an armed conflict which is 'not of an international 
		character,'" id. at 448, § 219, that conflict was recognizably a civil 
		war between a State and an insurgent group, not a conflict between or 
		among violent factions in a territory in which the State had collapsed.  
		Thus there is substantial reason to question the logic and scope of the 
		ICJ's interpretation of common Article 3. 
		20.  See, e.g., Protocol 
		Additional to the Geneva Conventions of 12 August 1949, and Relating to 
		the Protection of Victims of International Armed Conflicts (Protocol I), 
		June 8, 1977, 1125 U.N.T.S. 4; Protocol Additional to the Geneva 
		Conventions of 12 August 1949, and Relating to the Protection of Victims 
		of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 
		U.N.T.S. 610. 
		21.  143 Cong. Rec. H5865-66 
		(daily ed. July 28, 1997) (remarks of Rep. Jenkins). 
		22.  Memorandum for Timothy 
		E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy 
		Assistant Attorney General, Office of Legal Counsel, Re:  The 
		President's Constitutional Authority to Conduct Military Operations 
		Against Terrorists and Nations Supporting Them (Sept. 25, 2001). 
		23.  Cf. Public Citzen v. 
		Department of Justice, 491 U.S. 440, 466 (1989) (construing Federal 
		Advisory Committee Act to avoid encroachment on presidential power); 
		Ashwander v. TVA, 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring) 
		(stating rule of avoidance); Association of Am. Physicians & Surgeons, 
		Inc. v. Clinton, 997 F.2d 898, 906-11 (D.C. Cir. 1993) (same). 
		24.  Some difference in the 
		language of the WCA might be thought to throw some doubt on the exact 
		manner in which the statute incorporates these treaty norms.  It 
		might be argued, for example, with respect to the Hague Convention IV, 
		that the WCA does not simply incorporate the terms of the treaty itself, 
		with all of their limitations on application, but instead criminalizes 
		the conduct described by that Convention.  The argument starts from 
		the fact that there is a textual difference in the way that the WCA 
		references treaty provisions.  Section 2441(c)(2) defines as a war 
		crime conduct "prohibited" by the relevant sections of the Hague 
		Convention IV.  By contrast, § 2441(c)(1) makes a war crime any 
		conduct that constitutes a "grave breach" of the Geneva Conventions, and 
		§ 2441(c)(3) prohibits conduct "which constitutes a violation" of common 
		Article 3 of the Geneva Convention.  It might be argued that this 
		difference indicates that § 2441(c)(2) does not incorporate the treaty 
		into federal law; rather, it prohibits the conduct described by the 
		treaty.  Section 2441(c)(3) prohibits conduct "which constitutes a 
		violation of common Article 3" (emphasis added), and that can only be 
		conduct which is a treaty violation.  Likewise, § 2441(c)(1) only 
		criminalizes conduct that is a "grave breach" of the Geneva Conventions 
		-- which again, must be a treaty violation.  In other words, § 
		2441(c)(2) might be read to apply even when the Hague Convention IV, by 
		its own terms, would not.  On this interpretation, an act could 
		violate § 2441(c9)(2), whether or not the Hague Convention IV applied to 
		the specific situation at issue. 
		We do not think that this 
		interpretation is terrible.  To begin with, § 2441(c)(2) makes 
		clear that to be a war crime, conduct must be "prohibited" by the Hague 
		Convention IV (emphasis added).  Use of the word "prohibited," 
		rather than phrases such as "referred to" or "described," indicates that 
		the treaty must, by its own operation proscribe teh conduct at issue.  
		If the Hague Convention IV does not itself apply to a certain conflict, 
		then it cannot itself proscribe any conduct undertaken as part of that 
		conflict.  Thus, the most natural reading of the statutory language 
		is than ian individual must violate the Hague Convention IV in order to 
		violate Section 2441(c)(2).  Had Congress intended broadly to 
		criminalize the types of conduct proscribed by the relevant Hague 
		Convention IV provisions as such, rather than as treaty violations, it 
		could have done so more clearly.  Furthermore, the basic purpose of 
		§ 2441 was to implement, by appropriate legislation, the United States' 
		treaty obligations.  That purpose would be accomplished by 
		criminalizing acts that were also violations of certain key provisions 
		of the Annex to Hague Convention IV.  It would not be served by 
		criminalizing acts of the kind condemned by those provisions, whether or 
		not they were treaty violations. 
		Nothing in the legislative history 
		supports the opposite result.  To the contrary, the legislative 
		history suggests an entirely different explanation for the minor 
		variations in language between §§ 2441(c)(1) and 2441(c)(2).  As 
		originally enacted, the WCA criminalized violations of the Geneva 
		Conventions.  See Pub. I. No. 104-192, § 2(a), 110 Stat. 2104 § 
		2401 (1996).  In signing the original legislation, President 
		Clinton urged that it be expaned to include other serious war crimes 
		involving violation of the Hague Conventions IV and the Amended Protocol 
		II.  See 2 Pub. Papers of William J. Clinton 1323 (1996).  The 
		Expanded War Crimes Act of 1997, introduced as H.R. 1348 in the 105th 
		Congress, was designed to meet these requests.  Thus, § 2441(c)(2) 
		was added as an amendment at a later time, and was not drafted at the 
		same time and in the same process as § 2441(c)(1). 
		25.  This understanding is 
		supported by the WCA's legislative history.  When extending the WCA 
		to cover violations of common Article 3, the House apparently understood 
		that it was codifying treaty provisions that "forbid atrocities 
		occurring in both civil wars and wars between nations."  143 Cong. 
		Rec. H5865-66 (remarks of Rep. Jenkins).  The Senate also 
		understood that "[t]he inclusion of common article 3 of the Geneva 
		Conventions ... expressly allows the United States to prosecute war 
		crimes perpetrated in noninternational conflicts, such as Bosnia and 
		Rwanda."  143 Cong. Rec. S7544, S7589 (daily ed. July 16, 1997) 
		(remarks of Sen. Leahy).  In referring to Bosnia and Rwand, both 
		civil wars of a non-international character, Senatory Leahy appears to 
		have understood common Article 3 as covering only civil wars as well.  
		Thus, Congress apparently believed that the WCA would apply only to 
		traditional international wars between States, or purely internal civil 
		wars. 
		26.  This is not to maintain 
		that Afghanistan ceased to be a State party to the Geneva Conventions 
		merely because it underwent a change of government in 1996, after the 
		military successes of Taliban.  The general rule of international 
		law is that treaty relations survive a change of government.  See, 
		e.g., 2 Marjorie M. Whiteman, Digest of International Law 771-3 (1963); 
		J.L. Brierly, The Law of Nations, 144-45 (6th ed. 1963); Eleanor C. 
		McDowell Contemporary Practice of the United States Relating to 
		International Law, 71 Am. J. Int'l L. 337 (1977). However, although "[u]nder 
		internationa law, a change in government alone generally does not alter 
		a state's obligations to honor its treaty commitments ... [a] different 
		and more difficult question arises ... when the state itself dissolves."  
		Yoo, supra n. 17, at 904.  Furthermore, we are not suggesting that 
		the United States' nonrecognition of the Taliban as the government of 
		Afghanistan in and of itself deprived Afghanistan of party status under 
		the Geneva Conventions.  The general rule is taht treaties may 
		still be observed even as to State parties, the current governments of 
		which have been unrecognized.  See New York Chinese TV Programs v. 
		U.E. Enterprises, 954 F.2d 847 (2d Cir.), cert. denied 506 U.S. 827 
		(1992); see also Restatement (Third) of the Foreign Relations Law of the 
		United States at § 202 cmts. a, b, Egon Schwelb, The Nuclear Test Ban 
		Treaty and International Law, 58 Am. J. Int'l L. 642, 655 (1964) 
		(quoting statements of President Kennedy and Secretary of State Rusk 
		that participation in a multilateral treaty does not affect recognition 
		status). 
		27.  Thomas Jefferson, 
		Opinion on the Powers of the Senate Respecting Diplomatic Appointments 
		(1790), reprinted in 16 The Papers of Thomas Jefferson 378 (Julian P. 
		Boyd ed. 1961). 
		28.  Id. at 379. 
		29. Alexander Hamilton, Pacificus 
		No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33, 39 
		(Harold C. Syrett et al., eds., 1969). 
		30.  10 Annals of Cong. 
		613-14 (1800). 
		31.  Harlow v. Fitzgerald, 
		457 U.S. 800, 812 n. 19 (1982). 
		32.  Nixon v. Fitzgerald, 457 
		U.S. 731, 749-50 (1982). 
		33.  Department of the Navy 
		v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280, 
		293-94 (1981)). 
		34.  United States v. Curtiss-Wright 
		Export Corp., 299 U.S. 304, 320 (1936). 
		35.  Id. at 514. 
		36.  Id.; see also id. at 
		508-09 (President might have "formulated a national policy quite 
		inconsistent with the enforcement" of the treaty). 
		37.  It is entirely possible 
		in international law for a territory (even a populated one) to be 
		without any State.  In the Western Sahara Case, Advisory Opinion, 
		1975 LCJ. 12 (Advisory Opinion May 22, 1975), the General Assembly 
		requested the ICJ to decide the question whether the Western Sahara at 
		the time of Spanish colonization was a territory belonging to no one.  
		The question would have had no meaning unless there could be Stateless 
		territory without a State.  See D.J. Harris, Cases and Materials on 
		International Law 113 (1991).  The Trenskei, a "homeland" created 
		for the Xhosa people by the Republic of South Africa in 1976, was also a 
		territory not internationally recognized as a State.  See id. at 
		110-11. 
		38. Secretary Rumsfeld Media 
		Availability en Route to Moscow (Nov. 2, 2001), available at
		
		http://www.yale.edu/lawweb/avalon/sept.11/dod_brief64.htm (visited 
		Nov. 8, 2001). 
		39.  Background Note 
		(October, 2001), available at 
		http://www.state.gov/*****************5380 (visited Oct. 25, 2001), prepared 
		by the Bureau of South Asian Affairs.  See also Reuters AlertNet -- 
		Afghanistan, Country Profiles ("There are no state-constituted armed 
		forces.  It is not possible to show how ground forces' equipment 
		has been divided among the different factions."), available at
		
		http://www.altertnet.org/thefacts/countryprofiles/152478?version_1 
		(visited Nov. 1, 2001). 
		40.  Oscar Schachter, The 
		Decline of the Nation-State and Its Implications for International Law, 
		36 Colum. J. Transnat'l L. 7, 18 (1997). 
		41.  Ahmed Rashid, Taliban:  
		Militant Islam, Oil & Fundamentalism in Central Asia 207 (2001). 
		42.  Philip Webster, Blair's 
		mission to Kabul, in The Times of London (Jan. 8, 2002), 2002 WI. 
		4171996. 
		43.  "States in which 
		institutions, and law and order have totally or partially collapsed 
		under the pressure and amidst the confusion of erupting violence, yet 
		which subsist as a ghostly presence on the world map, are now commonly 
		referred to as 'failed States' or "Etats sans gouvernmement,'" Daniel 
		Thurer, The failed State and International Law, International Review of 
		the Red Cross No. 836 (Dec. 31, 19999), available at http:/www.icrc.org/eng/review 
		(visited Octo. 22, 2001).  Somewhat different tests have been used 
		for determining whether a State has "failed."  First, the most 
		salient characteristic of a "failed State" seems to be the disappearance 
		of a "central government."  Yorarm Dinstein, The Thirteenth 
		Waldemar A. Self Lecture in International Law, 166 Mil. L. Rev. 93, 103 
		(2000); see also ids. ("All that remains is a multiplicity of groups of 
		irregular combatants fighting each other.").  Closely related to 
		this test, but perhaps somewhat broader, is the definition of a "failed 
		State" as "a situation where the government is unable to discharge basic 
		governmental functions with respect to its populace and its territory.  
		Consequently, laws are not made, cases are not decided, order is not 
		preserved and societal cohesion deteriorates.  Basic services such 
		as central governing authorities cease to exist only in limited areas."  
		Ruth Gordon, Growing Constitutions, 1 U. Pa. J. Const. L. 528, 533-34 
		(1999).  Professor Thurer distinguishes three elements 
		(respectively, territorial, political and functional) said to 
		characterize a "failed State":1) failed States undergo an "implosion 
		rather than an explosion of the structures of power and authority, the 
		disintegration and destructuring of States rather than their 
		dismemberment;" 2) they experience "the total or near total breakdown of 
		structures guaranteeing law and order;" and 3) there are marked by "the 
		absence of bodies capable, on the one hand, of representing the State at 
		the international level and, on the other, of being influenced by the 
		outside world."  Thurer, supra. 
		44.  See Restatement (Third) 
		of the Foreign Relations Law of the United States, at § 201; see also 
		1933 Montevideo Convention on Rights and Duties of States, art. I, 49 
		Stat. 3097, 28 Am. J. Int'l L. Supp. 75 (1934). 
		45.  Eleanor C. McDowell, 
		Contemporary Practice of the United States Relating to International 
		Law, 71 Am. J. Int'l L. 337 (1977). 
		46.  See CNN.com/In-Depth 
		Specials, War Against Terror, available at
		
		http://www.cnn.com/SPECIALS/2001/trade.center/refugee.map.html 
		(visited Nov. 1, 2001).  Other estimates are lower but still 
		extremely large numbers.  See, e.g., Goodson, supra, at 149 
		(estimating 1.2 million Afghans living in Pakistan). 
		47.  Goodson, supra, at 115. 
		48.  Rashid, supra, at 213. 
		49.  Id. at 207-08, 212-13. 
		50.  Goodson, supra, at 
		103-04; 115. 
		51.  United States Department 
		of State, International Information Programs, Rocca Blames Taliban for 
		Humanitarian Disaster in Afghanistan (Oct. 10, 2001), available at
		
		http://www.usinfo.state.gov/regional/nea/sasia/afghan/text/1010roca.htm 
		(visited Oct. 19, 2001). 
		52.  See U.N. Security 
		Council Resolution 1333 (2000), available at
		
		http://www.yale.edu/lawweb/avalon/sept_11/unsecres_1333.htm (finding 
		that "the Taliban benefits directly from the cultivation of illicit 
		opium by imposing a tax on its production and indirectly benefits from 
		the processing and trafficking of such opium, and these substantial 
		resources strengthen the Taliban's capacity to harbor terrorists").  
		The United States Government has amassed substantial evidence that 
		Taliban has condoned and profited from narco-traffricking on a massive 
		scale, with disastrous effects on neighboring countries.  See The 
		Taliban, Terrorism, and Drug Trade; Hearing Before the Subcomm. on 
		Criminal Justice, Drug Policy and Human Resources of the House Comm. on 
		Government Reform, 107th Cong. (2001) (testimony of William Bach, 
		Director, Office of Asia, Africa, Europe, NIS Programs, Bureau of 
		International Narcotics and Law Enforcement Affairs, Department of 
		State; testimony of Asa Hutchinson, Administrator, Drug Enforcement 
		Administration, U.S. Department of Justice).  "The heroin explosion 
		emanating from Afghanistan is now affecting the politics and economics 
		of the entire region.  It is crippling societies, distorting the 
		economics of already fragile states and creating a new narco-elite which 
		is at odds with the ever increasing poverty of the population."  
		Rashid, supra, at 123; see also Goodson, supra, at 101-03; Peter Tomsen, 
		Untying the Afghan Knot, 25 WTR Fletcher F. World Aff. 17, 18 (2001) 
		("Afghanistan is now the world's largest producer of opium.").  
		Iran is estimated to have as many as three million drug addicts, largely 
		as a result of Taliban's involvement in the drug trade.  Rashid, 
		supra, at 122, 203. 
		53.  See, e.g., "2 U.S. 
		Targets Bound by Fate," The Washington Post at A22 (Nov. 14, 
		2001)("According to Thomas Gouttierre, an Afghan expert at the 
		University of Nebraska and a former UN adviser, the so-called Afghan 
		Arbs surrounding bin Laden were much more educated and articulate than 
		the often illiterate Taliban and succeeded in convincing them that they 
		were at the head of a world-wide Islamic renaissance. 'Al Qaeda ended up 
		hijacking a large part of the Taliban movement,' he said, noting that 
		[Taliban supreme religious leader Mohammed] Omar and bin Laden were 
		'very, very tight' by 1998."); "Bin Laden Paid Cash For Taliban," The 
		Washington Post at A1 (Nov. 30, 2001) (reporting claims by former 
		Taliban official of al Qaeda's corruption of Taliban officials). 
		54.  U.N. Security Council 
		Resolution 1333 "strongly condemn[ed]" the Taliban for the "sheltering 
		and training of terrorists and [the] planning of terrorist acts," and "de;lor[ed] 
		the fact that the Taliban continues to provide a safe haven to Usama bin 
		Laden and to allow him and others associated with him to operate a 
		network of terrorist training camps from Taliban-controlled territory 
		and to use Afghanistan as a base from which to sponsor international 
		terrorist operations."  U.N. Security Council Resolution 1214, ¶ 13 
		(1998) enjoined the Taliban to stop providing a sanctuary and training 
		for terrorists.  U.N. Security Council Resolution 1267, ¶ 2 (1999), 
		stated that the Taliban's failure to comply with the Council's 1998 
		demand constituted a threat to the peace.  See Sean D. Murphy, 
		Efforts to Obtain Custody of AOsama Bin Laden, 94 Am. J. Int'l L. 366 
		(2000). 
		55.  See Yossef Bodansky, Bin 
		Laden:  The Man Who Declared War on America 301-02 (2001). 
		56.  See Robert F. Turner, 
		International Law and the Use of Force in Response to the World Trade 
		Center and Pentagon Attacks, available at
		
		http://jurist.law.pitt.edu/forumnew/34.htm (visited Oct. 25, 
		2001)("if (as has been claimed by the US and UK governments) bin Laden 
		masterminded the attacks on New York and Washington.  Afghanistan 
		is in breach of its state responsibility to take reasonable measures to 
		prevent its territory from being used to launch attacks against other 
		states.  The United States and its allies thus have a legal right 
		to violate Afghanistan's territorial integrity to destroy bin Laden and 
		related terrorist targets.  If the Taliban elects to join forces 
		with bin Laden, it, too, becomes a lawful target."); see also W. Michael 
		Reisman, International Legal Responses to Terrorism, 22 Hous J. Int'l L. 
		3, 40-42, 51-54 (1999). 
		57.  See "A Look at the 
		Taliban" Sept. 30, 2001, available at
		
		http://www.usatoday.com/news/world/2001/thetaliban.htm (visited Oct. 
		19, 2001).  Indeed, Pakistan had been the only country in the world 
		that maintained an embassy in Kabul; the overwhelming majority of States 
		and the United Nations recognized exiled President Burhamuddin Rabbani 
		and his government as the country's legal authorities.  See 
		"Taliban tactics move to hostage ploy," Aug. 8, 2001, available at
		
		http://www.janes.com/regional_news/asia_pacific/news/jid/jid010808_1_n.shtml 
		(visited Oct. 19, 2001). 
		58.  We do not think that the 
		military successes of the United States and the Northern Alliance 
		necessarily meant that Afghanistan's statehood was restored before the 
		Bonn agreement, if only because the international community, including 
		the United States, did not regard the Northern Alliance as constituting 
		the government of Afghanistan.  United Nations Security Council 
		Resolution 1378, ¶ 1 (2001), available at
		
		http://www.yale.edu/lawweb/avalon/sept_11/unsecres_1378.htm (visited 
		Nov. 19, 2001), expressed "strong support for the efforts of the Afghan 
		people to establish a new and transitional administration leading to the 
		formation of a "government" (emphasis added); see also id. ¶ 3 
		(affirming that the United Nations should play a central role in 
		supporting Afghan efforts to establish a "new and transitional 
		administration leading to the formation of a new government").  The 
		plain implication of this Resolution, which reflects the views of the 
		United States, is that Afghanistan after Taliban did not have a 
		government at that time. 
		59.  Murray Campbell, 
		Enigmatic Taliban cleric a poor leader, The Globe and Mail, at A11 (Dec. 
		1, 2001). 
		60.  Indeed, there are press 
		reports (which have also been denied) that a daughter of bin Laden 
		married Omar, and a daughter of Omar married bin Laden. 
		61.  Michael Dobbs and Vernon 
		Loeb, supra note 53. 
		62.  Michael Kramish and 
		Indira A.R. Lakshmanan, Partners in 'Jihad':  Bin Laden Ties to 
		Taliban:  How Odd Alliances Marked Bin Laden's Path, in The Boston 
		Globe (Oct. 28, 2001), 2001 WI. 3958881.  This article contains 
		especially detailed information about the close linkages between the two 
		movements and their leaders. 
		63.  Peter McGrath and Gretel 
		Kovach, Bin Laden's Imprint; an expert on the radical leader says 
		targeting the Saudi dissident won't eliminate his threat, in Newsweek 
		(Sept. 14, 2001), 2001 WI. 24138958. 
		64.  As one expert on 
		Afghanistan has recently noted, "Afghanistan hasn't really had a 
		credible central government since 1973, when the king was ousted ... 
		They have been out of practice at seeing themselves as having a central 
		authority of some kind."  Kevin Whitelaw et al., A Hunt in the 
		Hills, in U.S. News & World Report (Dec. 17, 2001), 2001 WI. 30366330 
		(quoting Thomas Gouttierre of the University of Nebraska-Omaha). 
		65.  331 U.S. at 514. 
		66.  In addition, as we have 
		noted, Article 3 is and was inapplicable because the conflict in 
		Afghanistan is and was of an international character. 
		67.  We refrain from 
		discussing more specific facts here due to the sensitive operational 
		nature of such information. 
		68.  The President could, of 
		course, also determine that it will be the policy of the United States 
		to require its own troops to adhere to standards of conduct recognized 
		under customary international law, and could prosecute offenders for 
		violations.  As explained above, the President is not bound to 
		follow these standards by law, but may direct the armed forces to adhere 
		to them as a matter of policy. 
		69.  Quoted in Joseph P. 
		Biallee, United Nations Peace Operations:  Applicable Norms and the 
		Application of the Law of Armed Conflict, 50 A.F.L. Rev. 1, 63 n. 235 
		(2001). 
		70.  Entitlement of American 
		Military Personnel Held by North Viet-Nam to Treatment as Prisoners of 
		War Under the Geneva Convention of 1949 Relative to the Treatment of 
		Prisoners of War, July 13, 1966, reprinted in John Norton Moore, Law and 
		the Indo-China War 635, 639 (1972). 
		71.  See United States v. 
		Noriega, 117 F.3d 1206, 1211 (11th Cir. 1997), cert. denied, 523 U.S. 
		1040 (1998). 
		72.  See Jan. E. Aldykiewicz 
		and Geoffrey S. Corn, Authority to Court-Martial Non-U.S. Military 
		Personnel for Serious Violations of International Humanitarian Law 
		Committed During Internal Armed Conflict, 167 Mil. L. Rev. 74, 77 n.6 
		(2001).  In United States v. Noriega, 808 F. Supp. 791, 794 (S.D. 
		Fla. 1992), the district court held that the United States' intervention 
		in Panama in late 1989 was an international armed conflict under 
		(common) Article 2 of the Geneva Convention III, and that General 
		Noriega was entitled to POW status.  To the extent that the holding 
		assumed that the courts are free to determine whether a conflict is 
		between the United States and another "State" regardless of the 
		President's view whether the other party is a "State" or not, we 
		disagree with it.  By assuming the right to determine that the 
		United States was engaged in an armed conflict with Panama -- rather 
		than with insurgent forces in rebellion against teh recognized and 
		legitimate Government of Panama -- the district court impermissibly 
		usurped the recognition power, a constitutional authority reserved to 
		the President.  The power to determine whether a foreign government 
		is to be accorded recognition, and the related power to determine 
		whether a condition of statelessness exists in a particular country, are 
		exclusively executive.  See, e.g., Baker v. Carr, 369 U.S. 186, 212 
		(1962) ("[R]ecognition of foreign governments so strongly defies 
		judicial treatment that without executive recognition a foreign state 
		has been called 'a republic or whose existence we know nothing.' ... 
		Similarly recognition of belligerency abroad is an executive 
		responsibility ...") (citation omitted); Kennett v. Chambers, 55 U.S. 
		(14 How.) 38, 50-51 (1852) ("[T]he question whether [the Republic of] 
		Texas [while in rebellion against Mexico] had or had not at that time 
		become an independent state, was a question for that department of our 
		government exclusively which is charged with our foreign relations.  
		And until the period when that department recognized it as an 
		independent state, the judicial tribunals ... were bound to consider ... 
		Texas as a part of the Mexican territory."); Mingtai Fire & Marine Ins. 
		Co. v. United Parcel Service, 177 F.3d 1142, 1145 (9th Cir.) ("[T]he 
		Supreme Court has repeatedly held that the Constitution commits to the 
		Executive branch alone the authority to recognize, and to withdraw 
		recognition from, foreign regimes."), cert. denied, 528 U.S. 951 (1999). 
		73.  Letter for the Hon. 
		Richard L. Thornburgh, Attorney General, from Abraham D. Sofaer, Legal 
		Adviser, State Department at 2 (Jan. 31, 1990). 
		74.  Quoted in Bialke, supra, 
		at 56. 
		75.  See Memorandum for John 
		Bellinger, III, Senior Associate Counsel and Legal Adviser to the 
		National Security Council, from John C. Yoo, Deputy Assistant Attorney 
		General, Office of Legal Counsel, and Robert J. Delahunty, Special 
		Counsel, Office of Legal Counsel, Re:  Authority of the President 
		to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001); see 
		also Memorandum for William Howard Taft, IV, Legal Adviser, Department 
		of State, from John Yoo, Deputy Assistant Attorney General, Office of 
		Legal Counsel, Re:  President's Constitutional Authority to 
		Withdraw Treaties from the Senate (Aug. 24, 2001). 
		76.  See Kennett, 55 U.S. at 
		47-48, 51; Terlinden, 184 U.S. at 288; Saroop, 109 F.3d at 171 
		(collecting cases), Alexander Hamilton argued in 1793 that the 
		revolution in France had triggered the power (indeed, the duty) of the 
		President to determine whether the pre-existing treaty of alliance with 
		the King of France remained in effect.  The President's 
		constitutional powers, he said, "include[] that of judging, in the case 
		of a Revolution of Government in a foreign Country, whether the new 
		rulers are competent organs of the National Will and ought to be 
		recognised or not:  And where a treaty antecedently exists between 
		the UStates and such nation that right involves the power of giving 
		operation or not to such treaty."  Alexander Hamilton, Pacificus 
		No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33, 41 
		(Harold C. Syrett et al., eds., 1969). 
		77.  See Taylor v. Morton, 23 
		F. Cas. 784 (C.C.D. Mass. 1855) (No. 13, 799) (Curtis, Circuit Justice), 
		aff'd 67 U.S. (2 Black) 481 (1862). 
		78.  See International Load 
		Line Convention, 40 Op. Att'y Gen. 119, 124 (1941).  Changed 
		conditions have provided a basis on which Presidents have suspended 
		treaties in the past.  For example, in 1939, President Franklin 
		Roosevelt suspended the operation of the London Naval Treaty of 1936.  
		"The war in Europe had caused several contracting parties to suspend the 
		treaty, for the obvious reason that it was impossible to limit naval 
		armaments.  The notice of termination was therefore grounded on 
		changed circumstances."  David Gray Adler, The Constitution and the 
		Termination of Treaties, 187 (1986). 
		79.  See, e.g., Charlton v. 
		Kelly, 229 U.S. 447, 473 (1913); Escobedo v. United States, 623 F.2d 
		1098, 1106 (5th Cir.), cert. denied, 449 U.S. 1036 (1980). 
		80.  It is possible for the 
		President to suspend a multilateral treaty as to one but not all of the 
		parties to the treaty.  In 1986, the United States suspended the 
		performance of its obligations under the Security Treaty (ANZUS Pact), 
		T.I.A.S. 2493, 3 U.S.T. 3420, entered into force April 29, 1952, as to 
		New Zealand but not as to Australia.  See Marian Nash (Leich), 1 
		Cumulative Diegest of United States Practice in International Law 
		1981-1988, at 1279-81. 
		81.  See, e.g., Geneva 
		Convention III, art. 142.  The suspension of a treaty is distinct 
		from the denunciation or termination of one.  Suspension is 
		generally a milder measure than termination, often being partial, 
		temporary, or contingent upon circumstances that can be altered by the 
		actions of the parties to the treaty.  Moreover, at least in the 
		United States, suspension of a treaty can be reversed by unilateral 
		executive action, whereas termination, which annuls a treaty, and which 
		is therefore more disruptive of international relationships, would 
		require Senate consent to a new treaty in order to be undone.  See 
		Oliver J. Lissitzyn, Treaties and Changed Circumstances (Rebus Sic 
		Stantibus), 61 Am. I. Int'l I. 895, 916 (1967) ("It is difficult to see 
		how a right of suspension would present greater dangers than a right of 
		termination."). 
		82.  In general, the partial 
		suspension of the provisions of a treaty (as distinct from both 
		termination and complete suspension) is recognized as permissible under 
		international law.  Article 60 of the Vienna Convention explicitly 
		permits the suspension of a treaty "in whole or in part." "[U]nder both 
		treaty law and non-forcible reprisal law as a basis for responsive 
		suspension it is clear that suspension may be only partial and need not 
		suspend or terminate an agreement as a whole, in contrast, for example, 
		with treaty withdrawal clauses."  John Norton Moore, Enhancing 
		Compliance With International Law:  A Neglected Remedy, 39 Va. J. 
		Int'l L. 881, 932 (1999).  Although suspension of particular treaty 
		provisions is recognized both in State practice and international law, 
		we are not aware of any precedent for suspending a treaty as to some, 
		but not others, of the persons otherwise protected by it.  
		Thus, we can see no basis for suggesting that the President might 
		suspend the Geneva Conventions as to the Taliban leadership, but not as 
		to its rank and file members.  However, the President could achieve 
		the same outcome by suspending the Conventions, ordering the U.S. 
		military to follow them purely as a matter of policy, and excepting the 
		Taliban leadership from the coverage of this policy. 
		83.  Article 118 states in 
		relevant part: 
		Prisoners of war shall be released 
		and repatriated without delay after the cessation of active hostilities. 
		In the absence of stipulations to 
		the above effect in any agreement concluded between the Parties to the 
		conflict with a view to the cessation of hostilities, or failing any 
		such agreement, each of the Detaining Powers shall itself establish and 
		execute without delay a plan of repatriation in conformity the principle 
		laid down in the foregoing paragraph. 
		84.  See Howard S. Levie, The 
		Korean Armistice Agreement and Its Aftermath, 41 Naval L. Rev. 115, 
		125-27(1993). 
		85.  See generally 3 Charles 
		Cheney Hyde, International Law Chiefly as Interpreted and Applied by the 
		United States, ¶ 674 at 1858-59 (2d ed. 1945). 
		86.  David M. Morriss, From 
		War to Peace:  A Study of Cease-Fire Agreements and the Evolving 
		Role of the United Nations, 36 Va. J. Int'l L. 801, 883 (1996). 
		87.  Id. at 885. 
		88.  See id. at 931 & n. 633. 
		89.  In general, of course, a 
		decision by a State not to discharge its treaty obligations, even when 
		effective as a matter of domestic law, does not necessarily relieve it 
		of possible international liability for non-performance.  See 
		generally Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, 
		Ltd., 291 U.S. 138, 160 (1934). 
		90.  See Legal Consequences 
		for States of the Continued Presence of South Africa in Namibia (South 
		West Africa) Notwithstanding Security Council Resolution 276, 1971 I.C.J. 
		16, 47 ¶ 98 (Advisory Opinion June 21, 1971) (holding it to be a 
		"general principle of law that a right of termination on account of 
		breach must be presumed to exist in respect of all treaties, except as 
		regards provisions relating to the protection of the human person 
		contained in treaties of a humanitarian character ... The silence of a 
		treaty as to the existence of such a right cannot be interpreted as 
		implying the exclusion of a right which has its source outside of the 
		treaty, in general international law[.]"). 
		91.  Vienna Convention on 
		Treaties art. 60(2)(b). 
		92.  Id. art. 60(3). 
		93.  Id. art. 60(5).  
		The Vienna Convention seems to prohibit or restrict the suspension of 
		humanitarian treaties if the sole ground for suspension is material 
		breach.  It does not squarely address the case in which suspension 
		is based, not on particular breaches by a party, but by the party's 
		disappearance as a State or on its incapacity to perform its treaty 
		obligations. 
		94.  Fujitsu Ltd. v. Federal 
		Express Corp., 247 F.3d 423, 433 (2d Cir.), cert. denied, 122 S. Ct. 206 
		(2001); Moore, supra, at 891-92 (quoting 1971 statement by Secretary of 
		State William P. Rogers and 1986 testimony by Deputy Legal Adviser Mary 
		V. Mochary). 
		95.  See Sir Ian Sinclair, 
		The Vienna Convention on the Law of Treaties 191 (2d ed. 1984) 
		(explaining intent and scope of reference to "humanitarian" treaties).  
		Indeed, when the drafters of the Vienna Convention added paragraph 5 to 
		article 60, the Geneva Conventions were specifically mentioned as coming 
		within it.  See Harris, supra n.19, at 797. 
		96.  See, e.g., Draper, The 
		Red Cross Conventions, supra, at 8; see also Military and Paramilitary 
		Activities In and Against Nicaragua (Nicaragua v. United States), 76 
		I.L.R. at 448, ¶ 220. 
		97.  See, e.g., Geneva 
		Convention III, art. 131. 
		98.  See, e.g., id., art. 142 
		99.  See Sinclair, supra, at 
		192. 
		100.  Geneva Convention IV, 
		art. 148. 
		101.  U.S. Army, The Law of 
		Land Warfare, Field Manual No. 27-10 (July 18, 1956), (the "FM 27-10"), 
		defines 'reprisals" as "acts of retaliation in the form of conduct which 
		would otherwise be unlawful, resorted to by one belligerent against 
		enemy personnel or property for acts of warfare committed by the other 
		belligerent in violation of the law of war, for the purpose of enforcing 
		future compliance with the recognized rules of civilized warfare.  
		For example, the employment by a belligerent of a weapon the use of 
		which is normally precluded by the law of war would constitute a lawful 
		reprisal for intentional mistreatment of prisoners of war held by the 
		enemy."  Id., ch. 8, ¶ 497(a).  In general, international law 
		disfavors and discourages reprisals.  See id. ¶ 497(d).  
		("Reprisals are never adopted merely for revenge, but only as an 
		unavoidable last resort to induce the enemy to desist from unlawful 
		practices.")  They are permitted, however, in certain specific 
		circumstances. 
		102.  See, e.g., the Geneva 
		Convention III, art. 8; Geneva Convention IV, art. 9. 
		103.  Geneva Convention III, 
		art. 9; Geneva Convention IV, art. 10. 
		104.  See Authority of the 
		Federal Bureau of Investigation to Override International Law in 
		Extraterritorial Law Enforcement Activities, 13 Op. O.I.C. 163 (1989). 
		105.  See, e.g., United 
		States v. Alverez-Machain, 504 U.S. 655 (1992). 
		106.  See, id. at 669-70; 
		Committee of United States Citizens Living in Nicaragua v. Reagan, 859 
		F.2d 929, 935-36 (D.C. Cir. 1988); Garcia-Mir v. Meese, 788 F.2d 1446, 
		1453-55 (11th Cir.), cert. denied, 479 U.S. 889 (1986). 
		107.  See, e.g., Michael J. 
		Glennon, Raising the Paquete Habana:  Is Violation of Customary 
		International Law by the Executive Unconstitutional?, 80 NW. U.L. REV. 
		321, 325 (1985); Louis Henkin, International Law as Law in the United 
		States, 82 MICH. L. REV. 1555, 1567 (1984); Jules Lobel, The Limits of 
		Constitutional Power.  Conflicts Between Foreign Policy and 
		International Law, 71 VA L. REV. 1071, 1179 (1985); see also Jonathan R. 
		Chauncy, Agora:  May the President Violate Customary International 
		Law?, 80 AM. J. INT'L I. 913 (1986). 
		108.  Recently, the status of 
		customary international law within the federal legal system has been the 
		subject of sustained debate with legal academia.  The legitimacy 
		ofincorporating customary international law as federal law has been 
		subjected in these exchanges to crippling doubts.  See Curtis A. 
		Bradley & Jack I. Goldsmith, Customary International Law As Federal 
		Common Law:  A Critique of the Modern Position, 110 Harv. L. Rev. 
		815, 817 (1997); see also Phillip R. Trimble, A Revisionist View of 
		Customary International Law, 33 UCLA L. Rev. 665, 672-673 (1986); Arthur 
		M. Weisburd, The Executive Branch and International Law, 41 Vand. L. 
		Rev. 1205, 1269 (1988).  These claims have not gone unchallenged.  
		Harold H. Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 
		1825, 1827 (1998); Gerald L. Neuman, Sense and Nonsense About Customary 
		International Law:  A Response to Professors Bradley and Goldsmith, 
		66 Fordham L. Rev. 371, 371 (1997); Beth Stephens, The Law of Our Land:  
		Customary International Law As Federal Law After Erie, 66 Frodham L. 
		Rev. 393, 396-97 (1997).  Bradley and Goldsmith have responded to 
		their critics several times.  See Curtis A. Bradley & Jack L. 
		Goldsmith, Federal Courts and the Incorporation of International Law, 
		111 Harv. L. Rev. 2260 (1998); Curtis A. Bradley & Jack L. Goldsmith, 
		The Current Illegitimacy of International Human Rights Litigation, 66 
		Fordham L. Rev. 319, 330 (1997). 
		109.  U.S. Const., art. I, § 
		8. 
		110.  The Federalist No. 80, 
		at 447-49 (Alexander Hamilton) (Clinton Rossiter ed., 1999). 
		111.  Id. at 444-46. 
		112.  See, e.g., Stewart Jay, 
		The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 
		819, 830-37 (1989); Bradford R. Clark, Federal Common Law.  A 
		Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1306-12 (1996); 
		Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy of 
		International Human Rights Litigation, 66 Fordham L. Rev. 319, 333-36 
		(1997). 
		113.  Cf. INS v. Chadha, 462 
		U.S. 919 (1983) (invalidating legislative veto for failure to undergo 
		bicameralism and presentment as required by Article I, Section 8 for all 
		legislation). 
		114.  In fact, allowing 
		customary international law to bear the force of federal law would 
		create significant problems under the Appointments Clause and the 
		non-delegation doctrine, as it would be law made completely outside the 
		American legal system through a process of international practice, 
		rather than either the legislature or officers of the United States 
		authorized to do so. 
		115.  See, e.g., Foster v. 
		Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). 
		116.  See John C. Yoo, 
		Globalism and the Constitution:  Treaties, Non-Self-Execution, and 
		the Original Understanding, 99 Colum L. Rev. 1955 (1999) 
		(non-self-execution of treaties justified by the original 
		understanding); John C. Yoo, Treaties and Public Lawmaking:  A 
		Textual and Structural Defense of Non-Self-Execution, 99 Colum. L. Rev. 
		2218 (1999) (demonstrating that constitutional text and structure 
		require implementation of treaty obligations by federal statute). 
		117.  11 U.S. (7 Cranch) 116, 
		145-46 (1812) (emphasis added). 
		118.  Id. at 128. 
		119.  See, e.g., Oliver Am. 
		Trading Co. v. Mexico, 264 U.S. 440, 442-43 (1924); Huntington v. 
		Attrill, 146 U.S. 657, 683 (1892); New York Life Ins. Co. v. Hendren, 92 
		U.S. 286, 286-87 (1875). 
		120.  92 U.S. 286, 286-87. 
		121.  Id. at 700. 
		122.  Two lines of cases are 
		often cited for the proposition that the Supreme Court has found 
		customary international law to be federal law.  The first, which 
		derives from Murray v. Schooner Charming Betsy, 6 U.S. (2.Cranch) 64 
		(1804).  The "Charming Betsy" rule, as it is sometimes known, is a 
		rule of construction that a statute should be construed when possible so 
		as not to conflict with international law.  This rule, however, 
		does not apply international law of its own force, but instead can be 
		seen as measure of judicial restraint:  that violating 
		international law is a decision for the political branches to make, and 
		that if they wish to do so, they should state clearly their intentions.  
		The second, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, applied 
		the "act of state" doctrine which generally precludes courts from 
		examining the validity of the decisions of foreign governments taken on 
		their own soil, as federal common law to a suit over expropriations by 
		the Cuban government.  As with Charming Betsy, however, the Court 
		developed this rule as one of judicial self-restraint to preserve the 
		flexibility of the political branches to decide how to conduct foreign 
		policy. 
		Some supporters of customary 
		international law as federal law rely on a third line of cases, 
		beginning with Filartiga v. Pena-Irala, 630, F.2d 876 (2d Cir. 1980).  
		In  Filartiga, the Second Circuit read the federal Alien Tort 
		Statute, 28 U.S.C. § 1350 (1994), to allow a tort suit in federal court 
		against the former official of a foreign government for violating norms 
		of international human rights law, namely torture.  Incorporation 
		of customary international law via the Alien Tort Statute, while 
		accepted by several circuit courts, has never received the blessings of 
		the Supreme Court and has been sharply criticized by some circuits, see, 
		e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808-10 (D.C. Cir. 
		1984) (Bork, J., concurring), cert. denied, 470 U.S. 1003 (1985), as 
		well as by academics, acc Curtis A. Bradley & Jack L. Goldsmith, The 
		Current Illegitimacy of International Human Rights Litigation, 66 
		Fordham L. Rev. 319, 330 (1997). 
		123. 
		See Memorandum for Timothy E. 
		Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy 
		Assistant Attorney General, Office of Legal Counsel, Re: The President's 
		Constitutional Authority to Conduct Military Operations Against 
		Terrorists and Nations Supporting Them (Sept. 25, 2001) (reviewing 
		authorities). 
		124.  "When articulating 
		principles of international law in its relations with other states, the 
		Executive branch speaks not only as an interpreter of generally accepted 
		and traditional rules, as would the courts, but also as an advocate of 
		standards it believes desirable for the community of nations and 
		protective of national concerns."  Sabbatino, 376 U.S. at 432-33.  
		See also Rappenecker v. United States, 509 F.Supp. 1024, 1029 (N.D. Cal. 
		1980) ("under the doctrine of separation of powers, the making of those 
		determinations [under international law] is entrusted to the 
		President."); International Load line Convention, 40 Op. Att'y Gen. at 
		123-24 (President "speak[s] for the nation" in making determination 
		under international law). 
		125.  13 Op. O.L.C. at 170. 
		126.  Id. 
		127.  Id. at 171. 
		128.  See, e.g., Campbell v. 
		Clinton, 203 F.3d 19, 40 (D.C. Cir.), cert. denied, 531 U.S. 815 (2000). 
		129.  See Ex parte Quirin, 
		318 U.S. 1, 28-29 (1942); cf. Hirota v. MacArthur, 338 U.S. 197, 208 
		(1948) (Douglas J. concurring) (Agreement with Allies to establish 
		international tribunals to try accused war criminals who were enemy 
		officials or armed service members was "a part of the prosecution of the 
		war.  It is a furtherance of the hostilities directed to a dilution 
		of enemy power and involving retribution for wrongs done."). 
		130.  Madsen v. Kinsella, 343 
		U.S. 341, 348 (1952). 
		131.  Sabbatino, 376 U.S. at 
		432-33. 
		132.  See Kadic v. Karadzic, 
		70 F.3d 232, 243 (2d Cir.) ("The liability of private individuals for 
		committing war crimes has been recognized since World War I and was 
		confirmed at Nuremberg after World War II ... and remains today an 
		important aspect of international law."), cert. denied, 518 U.S. 1005 
		(1996). 
		133.  The President has broad 
		authority under the Commander in Chief Clause to take action to 
		superintend the military that overlaps with Congress's power to create 
		the armed forces and to make rules for their regulation.  See 
		Loving v. United States, 517 U.S. 748, 772 (1996) ("The President's 
		duties as Commander in Chief ... require him to take responsible and 
		continuing action to superintend the military, including 
		courts-martial."); United States v. Eliason, 41 U.S. (16 Pet.) 291, 301 
		(1842) ("The power of the executive to establish rules and regulations 
		for the government of the army, is undoubted.").  The executive 
		branch has long asserted that the President has "the unquestioned power 
		to establish rules for the government of the army" in the absence of 
		legislation, Power of the President to Create a Militia Bureau in the 
		War Department, 10 Op. Att'y Gen. 11, 14 (1861).  Indeed, at an 
		early date, Attorney General Wirt concluded that regulations issued by 
		the President on his independent authority remained in force even after 
		Congress repealed the statute giving them legislative sanction "in all 
		cases where they do not conflict with positive legislation."  
		Brevet Pay of General Macomb, 1 Op. Att'y Gen. 547, 549 (1822).  
		These independent powers of the President as commander in chief have 
		frequently been exercised in administering justice in cases involving 
		members of the Armed Forces:  "[i]ndeed, until 1830, courts-martial 
		were convened solely on [the President's] authority as Commander-in]Chief."  
		Congressional Research Service, The Constitution of the United States of 
		America:  Analysis and INterpretation 479 (1987). 
		134.  FM 27-10, ch. 1, ¶ 
		7(c). 
		135.  10 U.S.C. § 892 (2000). 
		
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