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MEMO 9
Office of the
Attorney General
Washington, D.C. 20530
February 1, 2002
The President
The White House
Washington, DC
Dear Mr. President:
With your
permission, I would like to comment on the National Security Council's
discussion concerning the status of Taliban detainees. It is my
understanding that the determination that al Qaeda and Taliban detainees
are not prisoners of war remains firm. However, reconsideration is being
given to whether the Geneva Convention III on prisoners of war applies
to the conflict in Afghanistan.
There are two basic
theories supporting the conclusion that Taliban combatants are not
legally entitled to Geneva Convention protections as prisoners of war:
1. During relevant
times of the combat, Afghanistan was a failed state. As such it was not
a party to the treaty, and the treaty's protections do not apply;
2. During relevant
times, Afghanistan was a party to the treaty, but Taliban combatants are
not entitled to Geneva Convention III prisoner of war status because
they acted as unlawful combatants.
If a determination
is made that Afghanistan was a failed state (Option 1 above) and not a
party to the treaty, various legal risks of liability, litigation, and
criminal prosecution are minimized. This is a result of the Supreme
Court's opinion in Clark v. Allen providing that when a President
determines that a treaty does not apply, his determination is fully
discretionary and will not be reviewed by the federal courts.
Thus, a Presidential
determination against treaty applicability would provide the highest
assurance that no court would subsequently entertain charges that
American military officers, intelligence officials, or law enforcement
officials violated Geneva Convention rules relating to field conduct,
detention conduct or interrogation of detainees. The War Crimes Act of
1996 makes violation of parts of the Geneva Convention a crime in the
United States.
In contrast, if a
determination is made under Option 2 that the Geneva Convention applies
but the Taliban are interpreted to be unlawful combatants not subject to
the treaty's protections, Clark v. Allen does not accord American
officials the same protection from legal consequences. In cases of
Presidential interpretation of treaties which are confessed to apply,
courts occasionally refuse to defer to Presidential interpretation.
Perkins v. Elg is an example of such a case. If a court chose to review
for itself the facts underlying a Presidential interpretation that
detainees were unlawful combatants, it could involve substantial
criminal liability for involved U.S. officials.
We expect
substantial and ongoing legal challenges to follow the Presidential
resolution of these issues. These challenges will be resolved more
quickly and easily if they are foreclosed from judicial review under the
Clark case by a Presidential determination that the Geneva Convention
III on prisoners of war does not apply based on the failed state theory
outlined as Option 1 above.
In sum, Option 1, a
determination that the Geneva Convention does not apply, will provide
the United States with the highest level of legal certainty available
under American law.
It may be argued
that adopting Option 1 would encourage other states to allege that U.S.
forces are ineligible for Geneva Convention III protections in future
conflicts. From my perspective, it would be far more difficult for a
nation to argue falsely that America was a "failed state" than to argue
falsely that American forces had, in some way, forfeited their right to
protections by becoming unlawful combatants. In fact, the North
Vietnamese did exactly that to justify mistreatment of our troops in
Vietnam. Therefore, it is my view that Option 2, a determination that
the Geneva Convention III applies to the conflict in Afghanistan and
that Taliban combatants are not protected because they were unlawful,
could well expose our personnel to a greater risk of being treated
improperly in the event of detention by a foreign power.
Option 1 is a legal
option. It does not foreclose policy and operational considerations
regarding actual treatment of Taliban detainees. Option 2, as described
above, is also a legal option, but its legal implications carry higher
risk of liability, criminal prosecution, and judicially-imposed
conditions of detainment -- including mandated release of a detainee.
Clearly,
considerations beyond the legal ones mentioned in this letter will shape
and perhaps control ultimate decision making in the best interests of
the United States of America.
Sincerely,
John Ashcroft
Attorney General
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