| MEMO 7 DRAFT1/25/2002-3:30 pm
 January 25, 2002 MEMORANDUM FOR THE 
		PRESIDENT FROM:  ALBERTO 
		R. GONZALES SUBJECT:  
		DECISION RE APPLICATION OF THE GENEVA CONVENTION ON PRISONERS OF WAR TO 
		THE CONFLICT WITH AL QAEDA AND THE TALIBAN 
		       Purpose On January 18, I 
		advised you that the Department of Justice had issued a formal legal 
		opinion concluding that the Geneva Convention III on the Treatment of 
		Prisoners of War (GPW) does not apply to the conflict with al Qaeda.  
		I also advised you that DOJ's opinion concludes that there are 
		reasonable grounds for you to conclude that GPW does not apply with 
		respect to the conflict with the Taliban.  I understand that you 
		decided that GPW does not apply and, accordingly, that al Qaeda and 
		Taliban detainees are not prisoners of war under the GPW. The Secretary of 
		State has requested that you reconsider that decision.  
		Specifically, he has asked that you conclude that GPW does apply to both 
		al Qaeda and the Taliban.  I understand, however, that he would 
		agree that al Qaeda and Taliban fighters could be determined not to be 
		prisoners of war (POWs) but only on a case-by-case basis following 
		individual hearings before a military board. This memorandum 
		outlines the ramifications of your decision and the Secretary's request 
		for reconsideration. Legal 
		Background As an initial 
		matter, I note that you have the constitutional authority to make the 
		determination you made on January 18 that the GPW does not apply to al 
		Qaeda and the Taliban. (Of course, you could nevertheless, as a matter 
		of policy, decide to apply the principles of GPW to the conflict with al 
		Qaeda and the Taliban.)  The Office of Legal Counsel of the 
		Department of Justice has opined that, as a matter of international and 
		domestic law, GPW does not apply to the conflict with al Qaeda.  
		OLC has further opined that you have the authority to determine that GPW 
		does not apply to the Taliban.  As I discussed with you, the 
		grounds for such a determination may include: 
			
			A determination 
			that Afghanistan was a failed state because the Taliban did not 
			exercise full control over the territory and people, was not 
			recognized by the international community, and was not capable of 
			fulfilling its international obligations (e.g., was in widespread 
			material breach of its international obligations).
			A determination 
			that the Taliban and its forces were, in fact, not a government, but 
			a militant, terrorist-like group. OLC's interpretation 
		of this legal issue is definitive.  The Attorney General is charged 
		by statute with interpreting the law for the Executive Branch.  
		This interpretive authority extends to both domestic and international 
		law.  He has, in turn, delegated this role to OLC.  
		Nevertheless, you should be aware that the Legal Adviser to the 
		Secretary of State has expressed a different view. Ramifications 
		of Determination that GPW Does Not Apply The consequences of 
		a decision to adhere to what I understood to be your earlier 
		determination that the GPOW does not apply to the Taliban include the 
		following: Positive: 
			Preserves flexibility:
				
				As you have 
				said, the war against terrorism is a new kind of war.  It 
				is not the traditional clash between nations adhering to the 
				laws of war that formed the backdrop for GPW.  The nature 
				of the new war places a high premium on other factors, such as 
				the ability to quickly obtain information from captured 
				terrorists and their sponsors in order to avoid further 
				atrocities against American civilians, and the need to try 
				terrorists for war crimes such as wantonly killing civilians.  
				In my judgment, this new paradigm renders obsolete Geneva's 
				strict limitations on questioning of enemy prisoners and renders 
				quaint some of its provisions requiring that captured enemy be 
				afforded such things as commissary privileges, script (i.e., 
				advances of monthly pay), athletic uniforms, and scientific 
				instruments.
				Although 
				some of these provisions do not apply to detainees who are not 
				POWs, a determination that GPW does not apply to al Qaeda and 
				the Taliban eliminates my argument regarding the need for 
				case-by-case determinations of POW status.  It also holds 
				open options for the future conflicts in which it may be more 
				difficult to determine whether an enemy force as a whole meets 
				the standard for POW status.
				By 
				concluding that GPW does not apply to al Qaeda and the Taliban, 
				we avoid foreclosing options for the future, particularly 
				against nonstate actors.Substantially reduces the threat of domestic 
			criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
				
				That 
				statute, enacted in 1996, prohibits the commission of a "war 
				crime" by or against a U.S. person, including U.S. officials.  
				"War crime" for these purposes is defined to include any grave 
				breach of GPW or any violation of common Article 3 thereof (such 
				as "outrages against personal dignity").  Some of these 
				provisions apply (if the GPW applies) regardless of whether the 
				individual being detained qualifies as a POW.  Punishments 
				for violations of Section 2441 include the death penalty.  
				A determination that the GPW is not applicable to the Taliban 
				would mean that Section 2441 would not apply to actions taken 
				with respect to the Taliban.
				Adhering to 
				your determination that GPW does not apply would guard 
				effectively against misconstruction or misapplication of Section 
				2441 for several reasons. 
				
					
					First, 
					some of the language of the GPW is undefined (it prohibits, 
					for example, "outrages upon personal dignity" and "inhuman 
					treatment"), and it is difficult to predict with confidence 
					what actions might be deemed to constitute violations of the 
					relevant provisions of GPW.
					Second, 
					it is difficult to predict the needs and circumstances that 
					could arise in the course of the war on terrorism.
					Third, 
					it is difficult to predict the motives of prosecutors and 
					independent counsels who may in the future decide to pursue 
					unwarranted charges based on Section 2441.  Your 
					determination would create a reasonable basis in law that 
					Section 2441 does not apply, which would provide a solid 
					defense to any future prosecution. Negative: On the other hand, 
		the following arguments would support reconsideration and reversal of 
		your decision that the GPW does not apply to either al Qaeda or the 
		Taliban: 
			
			Since the Geneva 
			Conventions were concluded in 1949, the United States has never 
			denied their applicability to either U.S. or opposing forced engaged 
			in armed conflict, despite several opportunities to do so.  
			During the last Bush Administration, the United States tated that it 
			"has a policy of applying the Geneva Conventions of 1949 whenever 
			armed hostilities occur with regular foreign armed forces, even if 
			arguments could be made that the threshold standards for the 
			applicability of the Conventions ... are not met."
			The United 
			States could not invoke the GPW if enemy forces threatened to 
			mistreat or mistreated U.S. or coalition forces captured during 
			operations in Afghanistan, or if they denied Red Cross access or 
			other POW privileges.
			The War Crimes 
			Act could not be used against the enemy, although other criminal 
			statutes and the customary law of war would still be available.
			Our position 
			would likely provoke widespread condemnation among our allies and in 
			some domestic quarters, even if we make clear that we will comply 
			with the core humanitarian principles of the treaty as a matter of 
			policy.
			Concluding that 
			the Geneva Convention does not apply may encourage other countries 
			to look for technical "loopholes" in future conflicts to conclude 
			that they are not bound by GPW either.
			Other countries 
			may be less inclined to turn over terrorists or provide legal 
			assistance to us if we do not recognize a legal obligation to comply 
			with the GPW.
			A determination 
			that GPW does not apply to al Qaeda and the Taliban could undermine 
			U.S. military culture which emphasizes maintaining the highest 
			standards of conduct in combat, and could introduce an element of 
			uncertainty in the status of adversaries. Response to 
		Arguments for Applying GPW to the al Qaeda and the Taliban On balance, I 
		believe that the arguments for reconsideration and reversal are 
		unpersuasive. 
			
			The argument 
			that the U.S. has never determined that GPW did not apply is 
			incorrect.  In at least one case (Panama in 1989) the U.S. 
			determined that GPW did not apply even though it determined for 
			policy reasons to adhere to the convention.  More importantly, 
			as noted above, this is a new type of warfare -- one not 
			contemplated in 1949 when the GPW was framed -- and requires a new 
			approach in our actions towards captured terrorists.  Indeed, 
			as the statement quoted from the administration of President George 
			Bush makes clear, the U.S. will apply GPW "whenever hostilities 
			occur with regular foreign armed forces."  By its terms, 
			therefore, the policy does not apply to a conflict with terrorists, 
			or with irregular forces, like the Taliban, who are armed militants 
			that oppressed and terrorized the people of Afghanistan.
			In response to 
			the argument that we should decide to apply GPW to the Taliban in 
			order to encourage other countries to treat captured U.S. military 
			personnel in accordance with the GPW, it should be noted that your 
			policy of providing humane treatment to enemy detainees gives us the 
			credibility to insist on like treatment for our soldiers.  
			Moreover, even if GPW is not applicable, we can still bring war 
			crimes charges against anyone who mistreats U.S. personnel.  
			Finally, I note that our adversaries in several recent conflicts 
			have not been deterred by GPW in their mistreatment of captured U.S. 
			personnel, and terrorists will not follow GPW rules in any event.
			The statement 
			that other nations would criticize the U.S. because we have 
			determined that GPW does not apply is undoubtedly true.  It is 
			even possible that some nations would point to that determination as 
			a basis for failing to cooperate with us on specific matters in the 
			war against terrorism.  On the other hand, some international 
			and domestic criticism is already likely to flow from your previous 
			decision not to treat the detainees as POWs.  And we can 
			facilitate cooperation with other nations by reassuring them that we 
			fully support GPW where it is applicable and by acknowledging that 
			in this conflict the U.S. continues to respect other recognized 
			standards
			In the treatment 
			of detainees, the U.S. will continued to be constrained by (i) its 
			commitment to treat the detainees humanely and, to the extent 
			appropriate and consistent with military necessity, in a manner 
			consistent with the principles of GPW, (ii) its applicable treaty 
			obligations, (iii) minimum standards of treatment universally 
			recognized by the nations of the world, and (iv) applicable military 
			regulations regarding the treatment of detainees.
			Similarly, the 
			argument based on military culture fails to recognize that our 
			military remain bound to apply the principles of GPW because that is 
			what you have directed them to do. 
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