| MEMO 10 THE LEGAL ADVISER 
		DEPARTMENT OF STATEWASHINGTON
 February 2, 2002 MEMORANDUM TO:  Counsel to 
		the President FROM:  William 
		H. Taft, IV SUBJECT:  
		Comments on Your Paper on the Geneva Convention 
		   The paper should 
		make clear that the issue for decision by the President is whether the 
		Geneva Conventions apply to the conflict in Afghanistan in which U.S. 
		armed forces are engaged. The President should know that a decision 
		that the Conventions do apply is consistent with the plain language of 
		the Conventions and the unvaried practice of the United States in 
		introducing its forces into conflict over fifty years. It is consistent 
		with the advice of DOS lawyers and, as far as is known, the position of 
		every other party to the Conventions. It is consistent with UN Security 
		Council Resolution 1193 affirming that "All parties to the conflict (in 
		Afghanistan) are bound to comply with their obligations under 
		international humanitarian law and in particular the Geneva Conventions. 
		..." It is not inconsistent with the DOJ opinion that the 
		Conventions generally do not apply to our world-wide effort to combat 
		terrorism and to bring al Qaeda members to justice.  From a policy 
		standpoint, a decision that the Conventions apply provides the best 
		legal basis for treating the al Qaeda and Taliban detainees in the way 
		we intend to treat them. It demonstrates that the United States bases 
		its conduct not just on its policy preferences but on its international 
		legal obligations. Agreement by all lawyers that the War Crimes Act does 
		not apply to our conduct means that the risk of prosecution under that 
		statute is negligible. Any small benefit from reducing it further 
		will be purchased at the expense of the men and women in our armed 
		forces that we send into combat. A decision that the Conventions do not 
		apply to the conflict in Afghanistan in which our armed forces are 
		engaged deprives our troops there of any claim to the protection of the 
		Convention in the event they are captured and weakens the protections 
		accorded by the Conventions to our troops in future conflicts.  The structure of 
		the paper suggesting a distinction between our conflict with al Qaeda 
		and our conflict with the Taliban does not conform to the structure of 
		the Conventions. The Conventions call for a decision whether they apply 
		to the conflict in Afghanistan. If they do, their provisions are 
		applicable to all persons involved in that conflict -- al Qaeda, 
		Taliban, Northern Alliance, U.S. troops, civilians, etc. If the 
		Conventions do not apply to the conflict, no one involved in it will 
		enjoy the benefit of their protections as a matter of law.  Status of Legal 
		Discussions re Application of Geneva Convention to
 Taliban and al Qaeda
 1. Legal 
		Conclusion re War Crimes Act Liability  2. Applicability 
		of GPW to Conflict With al Qaeda  
			
			DOJ lawyers have 
			concluded as matter of law that our conflict with al Qaeda, 
			regardless of where it is carried out, is not covered by GPW. 
			Lawyers from DOD, WHC, and OVP support that legal conclusion. 
			 
				
				DOJ, DOD, 
				WHC, and OVP lawyers believe that this conclusion is desirable 
				from a domestic law standpoint because it provides the best 
				possible insulation from any misapplication of the War Crimes 
				Act to the conflict with al Qaeda, whether in Afghanistan or 
				elsewhere. 
				DOJ, DOD, 
				WHC, and OVP lawyers further believe that this conclusion is 
				appropriate for policy reasons because it emphasizes that the 
				worldwide conflict with al Qaeda is a new sort of conflict, one 
				not covered by GPW or some other traditional rules of warfare.
				
			DOS lawyers 
			believe that GPW applies to our treatment of al Qaeda members 
			captured in Afghanistan on the theory that GPW applies to the 
			conflict in Afghanistan, not to particular individuals or groups.
			 
				
				DOS lawyers 
				believe this conclusion is desirable from a domestic and 
				international law standpoint because it provides the best legal 
				basis for our intended treatment of the detainees and 
				strengthens the Geneva Convention protections of our forces in 
				Afghanistan and other conflicts. DOS lawyers further believe 
				this conclusion is appropriate for policy reasons because it 
				emphasizes that even in a new sort of conflict the United States 
				bases its conduct on its international treaty obligations and 
				the rule of law, not just on its policy preferences. 
			JCS lawyers do 
			not object to DOJ's (or DOS's) legal conclusion, provided that JCS' 
			policy concerns are addressed by statements that (1) the U.S. will 
			treat all detainees as if the convention applied; (2) emphasize the 
			importance we attach to theconvention; and (3) emphasize our 
			expectation that all other countries will treat our armed forces 
			consistent with the convention.  3. Applicability 
		of GPW to Conflict With the Taliban  
			
			DOJ, WHC and OVP 
			lawyers agree that the President has authority to determine to 
			suspend GPW as between the U.S. and Afghanistan based on a 
			conclusion that Afghanistan is a failed state. 
			DOS lawyers
			disagree with this conclusion and oppose such a 
			determination 
			DOS lawyers do 
			not agree that Afghanistan is failed State, that a failed State is 
			relieved of its treaty obligations, or that the ***************
			JCS lawyers 
			oppose the determination on policy grounds to the extent that those 
			policy considerations are not addressed as set forth in the last 
			bullet of 1. above. 
			All lawyers 
			agree that (a)Taliban detainees are not POWsand (b) they do not fit within the class of those entitled 
			to any of the other (i.e. non-Pow) protections of GPW.  
			Thus all relevant lawyers agree  that Taliban detainees will 
			not benefit at all from GPW, whether or not GPW is suspended.
			DOJ lawyers 
			believe that it is desirable to adhere to the President's 
			determination of January 18 that GPW does not apply to our conflict 
			with the Taliban in order to provide the best possible level of 
			protection against misapplication of the War Crimes Act. OVP, DOD 
			and WHC lawyers agree that the President's January 18 determination 
			provides the best possible level of protection.  4. POW Status 
		 5. Further 
		Screening  
			
			DOJ, WHC, and 
			OVP lawyers believe that the President has definitively 
			determinedthat al Qaeda and Taliban soldiers who come 
			under U.S. control are not entitled to POW status.They 
			further believe that this determination is conclusiveand 
			that no procedures are needed for further screening of any al Qaeda 
			or Taliban detainees. They also believe that non-POW status affords 
			the flexibility to release or transfer any prisoner determined not 
			to be an appropriate candidate for detention, e.g., because he is a 
			low-level recruit who poses no continuing threat and who has no 
			relevant information.
			DOD, JCS and DOS 
			lawyers believe that, in the unlikely event that "doubt should 
			arise" as to whether a particular detainee does not qualify for POW 
			status, we should be prepared to offer additional screening on a 
			case-by-case basis, either pursuant to Article 5 of GPW (to the 
			extent the Convention applies) or consistent with Article 5 (to the 
			extent it does not). The National Security Advisor has advised the 
			Canadian government that this is our policy.  6. CIA Issues
		 
			
			The lawyers 
			involved all agree that the CIA is bound by the same legal 
			restrictions as the U.S. military 
			They further 
			agree that the CIA enjoys the same high level of protection from 
			liability under the War Crimes Act as the U.S. military 
			CIA lawyers 
			believe that, to the extent that GPW's protections do not apply as a 
			matter of law but those protections are applied as a matter of 
			policy, it is desirable to circumscribe that policy so as to limit 
			its application to the CIA. The other lawyers involved did not 
			disagree with or object to CIA's view.  
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