ASHINGTON, May 20 � A series of Justice Department
memorandums written in late 2001 and the first few months of 2002 were
crucial in building a legal framework for United States officials to avoid
complying with international laws and treaties on handling prisoners,
lawyers and former officials say.
The confidential memorandums, several of which were written or
co-written by John C. Yoo, a University of California law professor who
was serving in the department, provided arguments to keep United States
officials from being charged with war crimes for the way prisoners were
detained and interrogated. They were endorsed by top lawyers in the White
House, the Pentagon and the vice president's office but drew dissents from
the State Department.
The memorandums provide legal arguments to support administration
officials' assertions that the Geneva Conventions did not apply to
detainees from the Afghanistan war. They also suggested how officials
could inoculate themselves from liability by claiming that abused
prisoners were in some other nation's custody.
The methods of detention and interrogation used in the Afghanistan
conflict, in which the United States operated outside the Geneva
Conventions, is at the heart of an investigation into prisoner abuse in
Iraq in recent months. Human rights lawyers have said that in showing
disrespect for international law in the Afghanistan conflict, the stage
was set for harsh treatment in Iraq.
One of the memorandums written by Mr. Yoo along with Robert J.
Delahunty, another Justice Department lawyer, was prepared on Jan. 9,
2002, four months after the terrorist attacks in New York and Washington.
The 42-page memorandum, entitled, "Application of treaties and laws to Al
Qaeda and Taliban detainees," provided several legal arguments for
avoiding the jurisdiction of the Geneva Conventions.
A lawyer and a former government official who saw the memorandum said
it anticipated the possibility that United States officials could be
charged with war crimes, defined as grave breaches of the Geneva
Conventions. The document said a way to avoid that is to declare that the
conventions do not apply.
The memorandum, addressed to William J. Haynes, the Pentagon's general
counsel, said that President Bush could argue that the Taliban
government in Afghanistan was a "failed state" and therefore its soldiers
were not entitled to protections accorded in the conventions. If Mr. Bush
did not want to do that, the memorandum gave other grounds, like asserting
that the Taliban was a terrorist group. It also noted that the president
could just say that he was suspending the Geneva Conventions for a
particular conflict.
Prof. Detlev Vagts, an authority on international law and treaties at
Harvard Law School, said the arguments in the memorandums as described to
him "sound like an effort to find loopholes that could be used to avoid
responsibility."
One former government official who was involved in drafting some of the
memorandums said that the lawyers did not make recommendations but only
provided a range of all the options available to the White House.
On Jan. 25, 2002, Alberto R. Gonzales, the White House counsel, in a
memorandum to President Bush, said that the Justice Department's advice
was sound and that Mr. Bush should declare the Taliban as well as Al Qaeda
outside the coverage of the Geneva Conventions. That would keep American
officials from being exposed to the federal War Crimes Act, a 1996 law,
which, as Mr. Gonzales noted, carries the death penalty.
The Gonzales memorandum to Mr. Bush said that accepting the
recommendations of the Justice Department would preserve flexibility in
the global war against terrorism. "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," said the memorandum, obtained this
week by The New York Times. The details of the memorandum were first
reported by Newsweek.
Mr. Gonzales wrote that the war against terrorism, "in my judgment
renders obsolete Geneva's strict limitations on questioning of enemy
prisoners."
Mr. Gonzales also says in the memorandum that another benefit of
declaring the conventions inapplicable would be that United States
officials could not be prosecuted for war crimes in the future by
prosecutors and independent counsels who might see the fighting in a
different light.
He observed, however, that the disadvantages included "widespread
condemnation among our allies" and that other countries would also try to
avoid jurisdiction of the Geneva Conventions. It also meant that the
United States might have difficulty in invoking the conventions in
protecting its own personnel who might be captured by an enemy.
Another memorandum from the Justice Department advises officials to
create a situation in which they could plausibly claim that abused
prisoners were never in United States custody.
That memorandum, whose existence was acknowledged by two former
officials, noted that it would be hard to ward off an allegation of
torture or inhuman treatment if the prisoner had been transferred to
another country from American custody. International law prohibits the
"rendition" of prisoners to countries if the possibility of mistreatment
can be anticipated.
The former officials said that memorandum was explicit in advising that
if someone were involved in interrogating detainees in a manner that could
cross the line into torture or other prohibited treatment, that person
could claim immunity only if he or she contended that the prisoner was
never in United States custody.
The Gonzales memorandum provoked a response from Secretary of State
Colin L. Powell on Jan. 26 in which he strongly suggested that the
advantages of applying the Geneva Conventions far outweighed their
rejection. He said bluntly that declaring the conventions inapplicable
would "reverse over a century of U.S. policy and practice in supporting
the Geneva Conventions and undermine the protections of the laws of war
for our troops." He also said he would "undermine public support among
critical allies."
Douglas Jehl contributed reporting for this
article.
