neesnntevestem arrangements mnneninoetnaeipa a ELE epee January 25, 2002 em @ MEMORANDUM FOR THE PRESIDENT FROM: ~ ALBERTOR GONZALES SUBJECT: DECISION RE APPLICATION OF THE GENEVA CONVENTION ON PRISONERS: “© WAR TO-THE CONBLICT WITH AL QAEDA AND THE TALIBAN - oe ‘Purpose, E Qn January 18, I actvised you thar the Department of Justice had issued a formal legal opinion ‘cetchiding that the Geneva Convention I onthe Treatment of Prisoners of Wax (GPW) does aot apply to ths (you that DOV's opinion’ wer you to conclude that GPW docs not apply with respect tp the condlict with the Talibaa, [understand that you decided that GPW does not apply md, accordingly, that al Qaeda and Taliban detainees are not prisoners of cosa ois Den tea ‘This memorandum outlines the ramifications of your decision and the Secretary's request for @ovriscons ‘As un initia! matter, [note that you have the canstinational authority t make the determination yout ‘made on Jantctry 18 that the GPW does nat apply wo al Qaeda and the Talibem. (Of course, yous could > bevertheless, as a matter of policy, decide to apply the principles of GPW to the conflict with al Qaoda and the: Taliban.) The Office of Legal Counsel of the Department of Justice haS opined that, as a matter of {international and domestic law, GFW docs not apply to the conflict with al Qaeda. OLChas further opined” ‘ast you have the antharity to detcaminc that GPW does not apply to the Taliban, -As I discussed with you, the grounds for such a determination may include: ee A determination that Afghinistin was a filed étate because the Taliban did not exercise full santrol + Over the territory and people, was not recognized by the intemational commamity, and was not capable of filflling its ixtcmstional cblignions (6g, was in widespread marmial breach of iit international obitigations).- eo wet earth Be A determination thet the Talibin and its forces Were, in fact, not a goverment, but a mflitant, terrorists Hke group: : : 1 a * % ohAGEN AA ENTE em ‘The consequences ofa decision to adhere to what I mderstood tobe your eartier determination thatthe eieenicheaiemneetateniaed Positive: "Preserves flexibility: © As you have said, the war against terrorism is a new kind of war. Itis not the traditional clash > etiveen nations adhering tothe laws of war that farmed the backehop for GPW. "The nature af the ‘now war placcs 2 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 ili tied yt we cs nh wel lings. lnmy new paradigm renders obsolete CGencva's strict limitations on questioning of enemy ee wisions ater ney be flor sch aavances pay); athletic uniforms, and aac eae a ae pris 5 tap to dtcnes yo gx pot POW detention that GPW does not apply to al Qaeda and the Taliban eliminates any argument regarding the need. - fr casey cave devermiuations of POW srus,Italse halt open epons fx the fture conics {a which may be mor dite detemae wheter eeny force asa whole mech thc 3 +t sganied Be POW mete: z ‘By conchading tat GPW docs ot apply 0 Gotta and tis ‘options for the future, particularly against nonstate actors, . Subrumtly rednse tb treat of deste emia prosemutin uate tho Wer Crimes Act (1B US. 2442). © That statute, enacted in 1996; probibits the commission of a “war crime” by or against a U.S. eS Peston, including US, officials. “War crime” for these purposes is defined wo include may grave breach of GPW or xy walt of common Article 3 thant (ouch ws" ‘outrages against personal dignity”). Sa ed eden ats poe OT te CEW Srila) rope of hatha: Ge Punishments for violations of Section 2441 include individual belng etnied pales ns a POW. the death penalty A determination thatthe GPW fs not applicable to the Teben would meas that~ Taliban. ‘Section 2441 would not apply to actions taken with respect to the determination © Adhering to your misconstruction or: ion of Section 2441 for several neasons. Sebatged Py some of the lmguage of the GPW is idcined Ck for example, "outrages upon. . and icis difficolt to ‘with confidence what personal dignity" and "inhuman treximent"), to predict actions might be deemed to constimte violations of the relevant provisions of GPW. Secon it seta wo prt the needs end ciearstmees that cou rite ith conse of ‘the war on terrorism. ©! 6 2 ©. Third, itis difficult to predict the motives of prosccutors and independent counsels + the fuhure decide to purmue based on Section 2441.’ Your detmimination unwarranted charges ult dace any ace easton Tr 8 Hl eee noe sly which would provide a SE eee ed ET On the ‘ther band, the ‘following arguments would ipport sen iat he GPW doen ely eee aa re aa“eaten er SEE 22 LEV CORVERGRS WERE CECE ECE EN TONY, Td Dinltd Sates A ae Se ee a applicability to either U.S. or opposing forces engaged in armed conflict, despite several ‘spporninities to do so. During the last Bush Administration, the United Stutcs stated that it “has & policy of applying the Geneva Conventions of 1949 whcacver armed hostiies occur with regular foreign armed forces, even if arguments could be made that the threshold standands for the i ‘of the Conventions . . . are not met.” * The United States could not invake the GPW if enemy forces threatened to mistreat or mistreated U.S. of coalition forces eaptired during opcrations in Afghanistan, or if they denied Red Cros access or other POW privileges. 2 a * ‘The War Crimes Act could not be used against the enemy, although other criminal statutes and the customary law af war would stil be avail ‘+ Our position would likely provoke widespread condemmation ameng our allies and in seme omestic quarters, even if we make clear fhat we will comply with the core humanitarian peiaciples of the treaty as a matter of policy. + Conclading that the Geneva technical ‘On balance, [believe thatthe arguments for reconsideration and reversal are uapermuasive. - * The argument that tho U.S. bas never dctchmincd that GPW did not apply is incorrect. In at Ieast, aoe case (Panzma in 1989) the U.S, deterizined that GPW did not apply evea though it determined for policy reasons to adhere to the convention. ‘More importantly, as noted abaye, this is a new type ‘of warfare —cne not conteatplated in 1949 when the GPW was framed — and requires a new cooperation ‘with other nations ty reassuring them that we fully support GPW wheze itis applicable and by acknowledging that inthis conflict the U.S, continues to respect other recognized standards. rok