At the center of the debate were the Geneva Conventions, a group of four treaties that set international standards for the humanitarian treatment of enemy soldiers and civilians during wartime. The treaties were adopted over many decades, the natural outcome of the horrors of war. At one time, abuse of enemy soldiers and civilians was something that took place in secret— rumored, but unseen and often unreported. With the growth of international communications and the evolution of increasingly brutal weaponry, images and tales of ever more gruesome abuse came out of the shadows, shocking the public consciousness. Nations decided that all was not fair in war, that rules had to be established to ensure that anyone captured by the enemy was treated humanely.
Then came World War II and with it the onset of some of history’s most vicious and abhorrent cruelty during international hostilities. The Holocaust, the Bataan death march, the Malmédy massacre, the Katyn Forest massacre— these crimes demonstrated a willingness on the part of combatants to torture and murder wantonly. In response, the conventions were updated and expanded.
In the years that followed, three parts of the revised conventions grew to particular significance. Article 4 of the Third Geneva Convention spelled out who would qualify for prisoner-of-war status during a conflict. In turn, Common Article 3, which appears in each of the treaties, governed the treatment of prisoners of war.
That did not mean, however, that people who did not qualify as prisoners of war could be abused. The Fourth Geneva Convention dictated requirements for humane treatment of civilians. That left one question seemingly unanswered: Do fighters who are not part of a regular army and who violate the laws of war— placing them outside the requirements for POW status— qualify for protection under the Fourth Convention? While that had been a subject of debate for some time, in 1998 a United Nations war crimes tribunal stated that everyone held by an enemy during a military conflict fell under the protections of either the Third Convention or the Fourth Convention.
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While he fell far lower than almost everyone else in the room on the bureaucratic ladder, John Yoo was easily the most important person there. Weeks before, Gonzales had instructed him to prepare a memo that would provide the analysis of both the conventions and the War Crimes Act which Bush could then use to reach a decision. All the other officials there could only make suggestions; it was Yoo who would ultimately put everything on paper. Gonzales took his seat at the center of the table.
“I’ve asked you all here to discuss the options under the laws of war,” he said. “Because we’re definitely capturing people, and we need to know how we’re supposed to treat them.”
The first to respond was William Taft IV, the general counsel at the State Department. Al-Qaeda, he said, was an easier issue— no one thinks terrorists are prisoners of war. But Taliban fighters were a different matter.
“The plain language of Geneva demands that they be granted POW status,” he said. “The Taliban is the government in Afghanistan. The Taliban we’re capturing are their armed forces.”
Yoo spoke next. He agreed that the status of al-Qaeda under the Geneva Conventions was an easy call— it was a criminal organization, not a nation. The issues involving the Taliban, on the other hand, were more complex. They were not the leaders of Afghanistan. Indeed, he said, the State Department had maintained for years that there was no central Afghani government, just groups of warring factions. The Taliban controlled only 90 percent of the country, and its borders of authority were continually shifting. They were incapable of maintaining government institutions or law and order. Civil society had been destabilized by violence. “Throughout the time of Taliban’s existence, Afghanistan has been incapable of meeting the conditions and responsibilities of a sovereign nation,” he said. “It is a failed state, and the United States can’t apply a treaty to a country that effectively doesn’t exist.”
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Copies of a draft legal opinion were laid out on the conference table in the Situation Room. John Yoo sat near the center, looking satisfied as lawyers from other government departments and agencies studied the document. It had taken several weeks, but he and his colleague Robert Delahunty had finally produced this preliminary version of the memo about the application of the Geneva Conventions to the Afghan War.
The passionate debate hadn’t diminished, so Gonzales had once again called a meeting trying to reconcile the conflicting opinions. If nothing else, Yoo could incorporate elements of the different outlooks into the next draft.
Will Taft, the State Department legal advisor who had emerged as Yoo’s primary opponent on the topic, was the first to speak.
“Geneva has defined our wars,” he said. “It is not possible to have a war unless Geneva applies. We—”
“Well,” Yoo interrupted, “does that mean we can’t have a war with a country that never signed the Geneva Conventions?”
Taft gave Yoo a quizzical look. “What do you mean?”
“We had the Korean War. North Korea hadn’t signed the Geneva Convention, but we had the war. So how could you be right?”
Taft listened, lost in thought. The argument seemed so misplaced— this wasn’t some technical question about who put what ink on what document. This was about the policies of the United States, about its unwavering application of the conventions to all hostilities involving its troops.
Everyone began speaking at once. What, someone asked, was the Pentagon’s position? Douglas Feith, the undersecretary of defense for policy, took that.
“It’s a matter of policy that we want our troops to have the protection of the Geneva Conventions, but we don’t want to give these terrorists Geneva protections,” he said.
Eyes turned to General Peter Pace, the vice chairman of the Joint Chiefs and the only member of the military at the meeting. He laced his fingers together as he set his hands on the conference table.
“Look, you’re the law side,” Pace said in a rich baritone voice. “What’s important for us is that we train our troops to obey Geneva.”
The commitment of America’s troops to the conventions did not come with an off switch. The terms and meaning of the treaties were beaten into the heads of new soldiers; it was a foundational part of military training.
“We tell them that if they follow Geneva, then they will be honorably treated when they’re captured. That’s—”
“General,” Yoo said, interrupting, “I just read this report that says that any American soldier who falls into al-Qaeda’s hands will get killed right away. They’re not interested in taking prisoners. That’s one of the reasons they’re terrorists. No matter what position you take, they’re not going to follow any rules.”
Pace didn’t back down. “It’s important for the United States to be seen as standing for the Geneva Conventions and complying with them in our situation,” he said.
Taft and Yoo fell into a discussion about Common Article Three, part of all four of the Geneva Conventions, which dictated that detainees in military hostilities had to be treated humanely, meaning that they couldn’t be subjected to pain, humiliation, or degradation. Others listened as the two lawyers dissected individual words, trying to classify the current war. But no matter how many times they examined the text, Yoo said, the law was clear; Geneva didn’t apply. Still, he was not there to dictate policy; his job, Yoo said, was to let the decision makers know their legal options.
“You could certainly make the argument that we’re not legally bound by Common Article Three but just say that we’re going to follow it on our own decision, for foreign policy purposes,” Yoo said.
Taft nodded. “I like that idea,” he said.
“Wait,” Feith said. “Why don’t we just publicly say we’re going to follow Common Article Three, but then not do it?”
There was an awkward silence.
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That same day, Gonzales was on the telephone with Bush. He called because Yoo and Delahunty had just issued their formal opinion on the applicability of the Geneva Conventions to the Afghan War. Gonzales was detailing the findings so that Bush could make the decision.
None of the conclusions were a surprise. Yoo and Delahunty had already submitted their less comprehensive memo to the Pentagon nine days ago, but this was the first time Bush heard their judgment.
Common Article Three— dealing with the treatment of prisoners of war— did not apply in the fight against al-Qaeda. There were also strong reasons, Gonzales explained, that the Taliban could not claim its protections. According to the legal analysis, the Taliban were not a constituted government and Afghanistan was not a sovereign country. It was, instead, a failed state with multiple tribal groups battling for control.
The Taliban also did not meet three of the four requirements to be deemed POWs if captured— they did not wear uniforms, did not have a command structure where a military leader was responsible for the actions of subordinates, and did not obey the laws of war. For those reasons, the United States was not bound to grant either al-Qaeda or Taliban members the protections offered POWs.
The briefing persuaded Bush. That day, he decided that Common Article Three did not apply to the conflict with either the Taliban or al-Qaeda.
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Addington reviewed that portion of the memo. Too many people seemed to be unaware of the scope of Geneva’s requirements. He wanted some way to emphasize how off the mark the conventions were in this new world.
He started typing.
“This new paradigm renders obsolete Geneva’s strict limitations on the questioning of enemy prisoners,” he wrote, “and renders quaint some of its provisions requiring the captured enemy to be afforded such things as commissary privileges, scrip [i.e., advances in monthly pay], athletic uniforms and scientific instruments.”
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By 3: 30 that afternoon, Flanigan and Addington were running up against a deadline. Gonzales had promised to have a draft of the memo sent to other officials, particularly Powell, and the time had come to ship out what had been written so far.
Flanigan printed Addington’s edited version and handed it off to Gonzales, who wrote in a few revisions by hand. Flanigan typed in the changes, printed the draft again, then sent it to be faxed from the Situation Room.
He took a moment to catch his breath, then gave Addington’s edit a careful read. While going over the second page, he winced.
“. . . and renders quaint some of its provisions . . .”
A little too snide, Flanigan thought. He liked the idea Addington was trying to convey, but hated the words. He edited out the line.
Powell was annoyed. Gonzales’s draft memo was wrong, or at least misleading.
The memo said that Powell wanted Bush to rule that the Geneva Conventions applied to both al-Qaeda and the Taliban, but gave no further explanation what that meant. Then it suggested Powell was willing to settle on an agreement whereby al-Qaeda and Taliban fighters could be determined not to qualify as POWs under the conventions, but only on a case-by-case basis.
Completely false. Powell never said any such thing. But that was why he needed to see the draft. Gonzales wanted Powell’s comments, and now he could try to get the memo to be accurate.
His comments filled up a one-page, single-spaced memo. At the top, he rewrote the summary of his position.
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 POW’s either as a group or on a case-by-case basis.
Somehow, his argument had just slid by others in the administration. Powell was not demanding that anyone to be granted POW status. He just wanted Bush to publicly proclaim that the Geneva accords applied to the Afghan War. That’s all. Under Geneva, the administration would be in its right to declare that neither group qualified as POWs. There was no need to take the extreme step of announcing that the United States was going to ignore the conventions, Powell thought, when the same result could be reached by following them.
From there, Powell tore at the underpinning of the memo’s logic. The “failed state” argument that had been advanced by Yoo and Delahunty was problematic— it contradicted the policies of the United States and the international community, which consistently held Afghanistan to its treaty obligations and identified it as a party to the Geneva Conventions. If Afghanistan was no longer a sovereign nation, then there could be no consequences for its failure to abide by any treaties. Again, a serious and unnecessary outcome, growing from a flawed legal interpretation.
Powell attached his summary comments to his own letter for Gonzales. In it, he presented his real argument. There were two choices— the president could choose to determine that Geneva did not apply to the Afghan War and deny POW status to the Taliban and al-Qaeda. Or the president could determine that Geneva did apply to the Afghan War and deny POW status to the Taliban and al-Qaeda.
Both options, he wrote, provided the same flexibility on how detainees were treated, including with respect to interrogation, detention, and trials. Both allowed the administration to withhold the benefits and privileges of POW status. Neither option entailed significant risk that American officials would be prosecuted under domestic law on the grounds that they had committed a grave breach of the conventions.
By applying Geneva to the Afghan War, the president would be continuing to espouse the country’s unwavering support for the conventions. It would preserve America’s credibility and moral authority, provide the strongest legal foundation for the administration’s actions, and maintain the POW status for American soldiers.
His argument, Powell thought, was hard to refute.
The next morning, Gonzales checked his BlackBerry and saw that the Washington Times had an exclusive story on its front page.
POWELL WANTS DETAINEES TO BE DECLARED POWS, the headline read. MEMO SHOWS DIFFERENCES WITH WHITE HOUSE.
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Three days later, on the morning of February 1, members of the war council arrived at the Situation Room for another meeting about the Geneva issue— this time with the president.
Everyone stood when Bush walked into the room. He said a few pleasantries, then took a seat. He already had a good sense of what was coming; Gonzales had just briefed him again on everyone’s opinion.
After Condoleezza Rice opened the meeting, Powell calmly stated his case. He laid out the two choices he had described in his memo, underscoring that Bush could accomplish everything he wanted without abandoning the conventions.
“We have an image to uphold around the world,” Powell said. “If we don’t do this, it will make it much more difficult for us to try and encourage other countries to treat people humanely.”
Every day, Powell said, they were working on persuading more nations to work with the United States in the war on terror. Deciding not to apply Geneva could make that job much more difficult.
General Pace spoke next, giving his now-familiar refrain about the military’s commitment to the accords. The discussion went around the table, and then Cheney spoke.
“This is a matter of law,” he said. The Taliban and al-Qaeda were not lawful combatants; they didn’t follow the rules of war.
“We all agree that they’ll be treated humanely,” Cheney said, “But we don’t want to tie our hands. We need to preserve flexibility. And under the law, we can do that.”
After about forty-five minutes, Bush gave a nod and thanked everyone for their input. The discussion was over.
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The lawyers took another shot, but Ashcroft rejected it again. He took a deep breath in frustration. “Okay!” he said. “Everybody out! I’m going to write this myself.”
As his staff lawyers left the room, Ashcroft began composing the letter in longhand. He agreed with Powell that there were two basic theories establishing that neither al-Qaeda nor the Taliban was entitled to POW status.
But, it was risky to declare the conventions as relevant to this war. There was a higher chance of litigation against administration officials— or even criminal prosecution. Plus, there was no need to fear that some other country might someday declare that American forces didn’t qualify for Geneva protections. His department’s analysis was based on the concept that Afghanistan was a failed state; other countries would not be able to reasonably make that same argument about the United States. The legal opinion could never be turned back against the country that produced it.
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Bush reached his final decision about the Geneva Conventions issue on February 7. Colin Powell won.
In a written order, Bush stated that he accepted the Justice Department’s legal opinion that the provisions of Geneva were irrelevant to the global conflict with al-Qaeda, meaning that none of its members qualified for prisoner-of-war status. He also maintained that, while he had the authority to suspend the conventions, he would not do so in the Afghan War.
“I determine that the provisions of Geneva apply to our present conflict with the Taliban,” the order said.
As a result, the status of the Taliban had to be examined under the terms of the accords. Based on that review, Bush declared that the Taliban were unlawful combatants, so they, too, did not qualify for POW status.
The analysis was incomplete. Bush made no finding as to whether the Taliban would be covered as civilians, given that a human rights tribunal had ruled that everyone fell under the terms of either Geneva Convention 3, which dealt with armed forces, or Geneva 4, which applied to civilians.
Still, Bush declared, the detainees would be treated humanely. “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva,” the order said.
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