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MEMO 8
United States
Department of State
Washington, D.C. 20520
January 26, 2002
MEMORANDUM
TO: Counsel to the
President
Assistant to the President for National Security Affairs
FROM: Colin L.
Powell
SUBJECT: Draft
Decision Memorandum for the President on the Applicability of the Geneva
Convention to the Conflict in Afghanistan
Option 1: Determine that the Geneva Convention on the
treatment of Prisoners of War (GPW) does not apply to
the conflict on “failed State” or some other grounds.
Announce this position publicly. Treat all detainees
consistent with the principles of the GPW;
and
Option 2: Determine that the Geneva Convention
does apply to the conflict in Afghanistan, but that members of al Qaeda
as a group and the Taliban individually or as a group are not entitled
to Prisoner of War status under the Convention. Announce this position
publicly. Treat all detainees consistent with the principles of the GPW.
The final memorandum should first tell the President
that both options have the following advantages—that is there is no
difference between them in these respects:
- Both provide the same practical flexibility in
how we treat detainees, including with respect to interrogation and
length of the detention.
- Both provide flexibility to provide conditions of
detention and trial that take into account constraints such as
feasibility under the circumstances and necessary security
requirements.
- Both allow us not to give the privileges and
benefits of POW status to al Qaeda and Taliban.
- Neither option entails any significant risk of
domestic prosecution against U.S. officials.
The memorandum should go on to identify the separate
pros and cons of the two options as follows:
Option 1—Geneva Convention does not apply to the
conflict
Pros:
- This is an across-the-board approach that on its
face provides maximum flexibility, removing any question of
case-by-case determination for individuals.
Cons:
- It will reverse over a century of U.S. policy and
practice in supporting the Geneva conventions and undermine the
protections of the law of war for our troops, both in this specific
context and in general.
- It has a high cost in terms of negative
international reaction, with immediate adverse consequences for our
conduct of foreign policy.
- It will undermine public support among critical
allies, making military cooperation more difficult to sustain.
- Europeans and others will likely have legal
problems with extradition or other forms of cooperation in law
enforcement, including in bringing terrorists to justice.
- It may provoke some individual foreign
prosecutors to investigate and prosecute our officials and troops.
- It will make us more vulnerable to domestic and
international legal challenge and deprive us of important legal
options:
- It undermines the President’s Military Order
by removing an important legal basis for trying the detainees
before Military Commissions.
- We will be challenged in international for a
(UN Commission on Human Rights; World Court; etc.).
- The Geneva Conventions are a more flexible
and suitable legal framework than other laws that would arguably
apply (customary international human rights, human rights
conventions). The GPW permits long-term detention without
criminal charges. Even after the President determines
hostilities have ended, detention continues if criminal
investigations or proceedings are in process. The GPW also
provides clear authority for transfer of detainees to third
countries.
- Determining GPW does not apply deprives us of
a winning argument to oppose habeas corpus actions in U.S.
courts.
Option 2—Geneva Convention applies to the conflict
Pros:
- By providing a more defensible legal framework,
it preserves our flexibility under both domestic and international
law.
- It provides the strongest legal foundation for
what we actually intend to do.
- It present a positive international posture,
preserves U.S. credibility and moral authority by taking the high
ground, and puts us in a better position to demand and receive
international support.
- It maintains POW status for U.S. forces,
reinforces the importance of the Geneva Conventions, and generally
supports the U.S. objective of ensuring its forces are accorded
protection under the Convention.
- It reduces the incentives for international
criminal investigations directed against U.S. officials and troops.
Cons:
- If, for some reason, a case-by-case review is
used for Taliban, some may be determined to be entitled to POW
status. This would not, however, affect their treatment as a
practical matter.
I hope that you can restructure the memorandum along
these lines, which it seems to me will give the President a much clearer
understanding of the options available to him and their consequences.
Quite aside from the need to identify options and their consequences
more clearly, in its present form, the draft memorandum is inaccurate or
incomplete in several respects. The most important factual errors are
identified on the attachment.
Comments on the Memorandum of January 25, 2002
Purpose
(Second paragraph) The Secretary of State believes
that al Qaeda terrorists as a group are not entitled to POW status and
that Taliban fighters could be determined not to be POWs either as a
group or on a case-by-case basis.
Legal Background
(First bullet) The Memorandum should note that any
determination that Afghanistan is a failed state would be contrary to
the official U.S. government position. The United States and the
international community have consistently held Afghanistan to its treaty
obligations and identified it as a party to the Geneva Conventions.
(Second paragraph) The Memorandum should note that the
OLC interpretation does not preclude the President from reaching a
different conclusion. It should also note that the OLC opinion is likely
to be rejected by foreign governments and will not be respected in
foreign courts or international tribunals which may assert jurisdiction
over the subject matter. It should also note that OLC views are not
definitive on the factual questions which are central to its legal
conclusions.
Ramifications of Determination that GPW Does Not Apply
(Positive) The Memorandum identifies several positive
consequences if the President determines the GPW does not apply. The
Memorandum should note that those consequences would result equally if
the President determines that the GPW does apply but that the detainees
are not entitled to POW status.
(Negative. First bullet) The first sentence is correct
as it stands. The second sentence is taken out of context and should be
omitted. The U.S. position in Panama was that Common Article 3 of the
Geneva Conventions did apply.
Response to Arguments for Applying GPW to the al Qaeda
and the Taliban
(First bullet) The assertion in the first sentence is
incorrect. The United States has never determined that the GPW did not
apply to an armed conflict in which its forces have been engaged. With
respect to the third sentence, while no one anticipated the precise
situation that we face, the GPW was intended to cover all types of armed
conflict and did not by its terms limit its application.
(Fourth bullet) The point is not clear. If we intend
to conform our treatment of the detainees to universally recognized
standards, we will be complying with the GPW.
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