Memos Reveal War Crimes Warnings

Discussion in 'Politics, Religion, Social Issues' started by zimv20, May 18, 2004.

  1. zimv20 macrumors 601


    Jul 18, 2002

  2. blackfox macrumors 65816


    Feb 18, 2003
    You know maybe I am missing something...but why can one supposedly dodge War Crimes liability/prosecution just by saying "I am not going to play by those rules" (eg Geneva Convention) or by refusing to call something what it obviously is (eg POWs)...doesn't that in effect give any person/leader effective free reign to do what they want? Please explain...
  3. Frohickey macrumors 6502a

    Feb 27, 2003
    January 25, 2002


    On January 18, I advised you that the Department of Justice had issued a formal legal opinion concluding that the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply to the conflict with al Qaeda. I also advised you that DOJ's opinion concludes that there are reasonable grounds for you to conclude that GPW does not apply with respect to the conflict with the Taliban. I understand that you decided that GPW does not apply and, accordingly, that al Qaeda and Taliban detainees are not prisoners of war under the GPW.
    The Secretary of State has requested that you reconsider that decision. Specifically, he has asked that you conclude that GPW does apply to both al Qaeda and the Taliban. I understand, however, that he would(??) agree that al Qaeda and Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.
    This memorandum outlines the ramifications of your decision and the Secretary's request for reconsideration.

    Legal Background
    As an initial matter, I note that you have the constitutional authority to make the determination you made on January 18 that the GPW does not apply to al Qaeda and the Taliban. (Of course, you could nevertheless, as a matter of policy, decide to apply the principles of GPW to the conflict with al Qaeda and the Taliban.) The Office of Legal Counsel of the Department of Justice has opined that, as a matter of international and domestic law, GPW does not apply to the conflict with al Qaeda. OLC has further opined that you have the authority to determine that GPW does not apply to the Taliban. As I discussed with you, the grounds for such a determination may include:
    - A determination that Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations (e.g., was in widespread material breach of its international obligations).
    - A determination that the Taliban and its forces were, in fact, not a government, but a militant, terrorist-like group.
    OLC's interpretation of this legal issue is definitive. The Attorney General is charged by statute with interpreting the law for the Executive Branch. This interpretive authority extends to both domestic and international law. He has, in turn, delegated this role to OLC. Nevertheless, you should be aware that the Legal Adviser to the Secretary of State has expressed a different view.

    Ramifications of Determination that GPW Does Not Apply
    The consequences of a decision to adhere to what I understood to be your earlier determination that the GPW does not apply to the Taliban include the following:
    - Preserves flexibility:
    - As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. 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, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgement, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.
    - Although some of these provisions do not apply to detainees who are not POWs, a determination that GPW does not apply to al Qaeda and the Taliban eliminates any argument regarding the need for case-by-case determinations of POW status. It also holds open options for the future conflicts in which it may be more difficult to determine whether an enemy force as a whole meets the standard for POW status.
    - By concluding that GPW does not apply to al Qaeda and the Taliban, we avoid foreclosing options for the future, particularly against nonstate actors.
    - Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
    - That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War crime" for these purposes is defined to include any grave breach of GPW or any violation of common Artile 3 thereof (such as "outrages against personal dignity"). Some of these provision apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.
    - Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons.
    - First, some of the language of GPW is undefined (it prohibits, for example, "outrages upon personal dignity" and "inhuman treatment"), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.
    - Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.
    - Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.
    On the other hand, the following arguments would support reconsideration and reversal of your decision that the GPW does not apply to either al Qaeda or the Taliban:
    - Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to either U.S. or opposing forces engaged in armed conflict, despite several opportunities to do so. During the last Bush Administration, the United States stated that it "has a policy of applying the Geneva Conventions of 1949 whenever armed hostilities occur with regular foreign armed forces, even if argumentes could be made that the threshold standards for the applicability of the Conventions...are not met."
    - The United States could not invoke the GPW if enemy forces threatened to mistreat or mistreated U.S. or coalition forces captured during operations in Afghanistan, or if they denied Red Cross access or other POW privileges.
    - The War Crimes Act could not be used against the enemy, although other criminal statutes and the customary law of war would still be available.
    - Our position would likely provoke widespread condemnation among our allies and in some domestic quarters, even if we make clear that we will comply with the core humanitarian principles of the treaty as a matter of policy.
    - Concluding that the Geneva Convention does not apply may encourage other countries to look for technical "loopholes" in future conflicts to conclude that they are not bound by GPW either
    - Other countries may be less inclined to turn over terrorists or provide legal assistance to us if we do not recognize a legal obligation to comply with the GPW.
    - A determination that GPW does not apply to al Qaeda and the Taliban could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.

    Response to Arguments for Applying GPW to the al Qaeda and the Taliban
    On balance, I believe that the arguments for reconsideration and reversal are unpersuasive.
    - The argument that the U.S. has never determined that GPW did not apply is incorrect. In at least one case (Panama in 1989) the U.S. determined that GPW did not apply even though it determined for policy reasons to adhere to the convention. More importantly, as noted above, this is a new type of warfare-one not contemplated in 1949 when the GPW was framed- and requires a new approach in our actions toward captured terrorists. Indeed, as the statement quoted from the administration of President George Bush makes clear, the U.S. will apply GPW "whenever hostilities occur with regular foreign armed forces." By its terms, therefore, the policy does not apply to a conflict with terrorists, or with irregular forces, like the Taliban, who are armed militants that oppressed and terrorized the people of Afghanistan.
    - In response to the argument that we should decide to apply GPW to the Taliban in order to encourage other countries to treat captured U.S. military personnel in accordance with the GPW, it should be noted that your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers. Moreover, even if GPW is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel. Finally, I note that our adversaries in several recent conflicts have not been deterred by GPW in their mistreatment of captured U.S. personnel, and terrorists will not follow GPW rules in any event.
  4. Frohickey macrumors 6502a

    Feb 27, 2003
    - The statement that other nations would criticize the U.S. because we have determined that GPW does not apply is undoubtedly true. It is even possible that some nations would point to that determination as a basis for failing to cooperate with us on specific matters in the war against terrorism. On the other hand, some international and domestic criticism is already likely to flow from your previous decision not to treat the detainees as POWs. And we can facilitate cooperation with other nations by reassuring them that we fully support GPW where it is applicable and by acknowledging that in this conflict the U.S. continues to respect other recognized standards.
    - In the treatment of detainees, the U.S. will continue to be constrainted by (i) its commitment to treat the detainees dumanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of GPW, (ii) its applicable treaty obligations, (iii) minimum standards of treatment universally recognized by the nations of the world, and (iv) applicable military regulations regarding the treatment of detainees.
    - Similarly, the argument based on military culture fails to recognize that our military remain bound to apply the principles of GPW because that is what you have directed them to do.


    Phew. That was a long article.
    (Transcribing these types of documents, in addition to reading them, I believe, improve your writing skills as well.)
  5. miloblithe macrumors 68020


    Nov 14, 2003
    Washington, DC
    It would be pretty great to see Bush and Rumsfeld convicted of war crimes...
  6. numediaman macrumors 6502a

    Jan 5, 2004
    Chicago (by way of SF)
    Frohickey probably is not aware that his post backs up blackfox's assertion perfectly. This administration thinks it can simply wave a magic wand and say "the rules do not apply to us" and think things will be OK.

    But instead things are getting worse for them. This must be how Nixon felt when he knew he had been cornered.

    Tomorrow's NY Times, tonight:

    May 19, 2004

    Officer Says Army Tried to Curb Red Cross Visits to Prison in Iraq

    WASHINGTON, May 18 — Army officials in Iraq responded late last year to a Red Cross report of abuses at Abu Ghraib prison by trying to curtail the international agency's spot inspections of the prison, a senior Army officer who served in Iraq said Tuesday.

    After the International Committee of the Red Cross observed abuses in one cellblock on two unannounced inspections in October and complained in writing on Nov. 6, the military responded that inspectors should make appointments before visiting the cellblock. That area was the site of the worst abuses.

    The Red Cross report in November was the earliest formal evidence known to have been presented to the military's headquarters in Baghdad before January, when photographs of the abuses came to the attention of criminal investigators and prompted a broad investigation. But the senior Army officer said the military did not start any criminal investigation before it replied to the Red Cross on Dec. 24.

    The Red Cross report was made after its inspectors witnessed or heard about such practices as holding Iraqi prisoners naked in dark concrete cells for several days at a time and forcing them to wear women's underwear on their heads while being paraded and photographed.

    Until now, the Army had described its response on Dec. 24 as evidence that the military was prompt in addressing Red Cross complaints, but it has declined to release the contents of the Army document, citing the tradition of confidentiality in dealing with the international agency.

    An Army spokesman declined Tuesday to characterize the letter or to discuss what it said about the Red Cross's access to the cellblock.​
  7. Frohickey macrumors 6502a

    Feb 27, 2003
    What post? Aside from the last few sentences, that was a transcript of the memo. I stand by my post, transcribing helps in writing skills. :p

    Okay, since you are going to try to attribute to me the mantle of proving blackfox's assertion, here is my analysis of the situation, using the transcription of the memo as evidence.

    This means that the President has the authority...

    This might be the portion that you consider as proving your case, but it does not. This portion is not applicable since the GPW does not apply, as stated earlier in the document, and the constitutional authority is there.

    On the whole, the memo cites what the President did (no GPW), determines the reasons for it (not soldiers, but terrorists), determines what might happen if he did something else (vulnerable to WarCrimesAct, have to provide workout suits to Taliban), and lists reasons for the decision (obtain information, prevent civilian atrocity), and the potential repercussions of that decision (France/Germany throws a hissy fit).

    I don't see it as backing up blackfox's assertion at all.

    Now, the key question should be, is the statement that the President has the constitutional authority to make the determination legally correct, or not. This is the crux of the whole issue. I'm not well versed in the War Powers act, so I defer to some other expert...Alberto Gonzalez is more of an expert than I.
  8. diamond geezer macrumors regular

    Jan 26, 2004
    As the Iraqis are neither Taliban or A Q, and since the Iraqi invasion is a war, we would probably see some prosecutions on the way.

    Except of course that the US has no interest in international justice and is a big enough bully to play by its own rules.
  9. Frohickey macrumors 6502a

    Feb 27, 2003
    Just a guess, but maybe after that declaration of end of major hostilities, all the enemy captured are probably considered *NOT* to be POWs. Maybe, from the start and up until that declaration, the enemy captured are POWs, as would Saddam and the other former high-ranking Iraqi governmental officers.

    Now, the one thing I could see that would trip GWBush up and really get him exposed to War Crimes Act violation would be, if (a) former Iraqi soldiers (b)reconstituted their army, (c) donned their uniforms, (d) fight as an army, (e) are captured and (f) exposed to the abuses listed in the Geneva Convention rules for war, *BUT*, and here is the big *BUT* :eek: if Iraq was not a signatory to the Geneva Convention, none of this applies.

    (is there a way to link an iTunes music selection to a word? sounds like the appropriate use of a Sir-Mix-A-Lot classic. :D :D :D)
  10. blackfox macrumors 65816


    Feb 18, 2003
    To clarify my point...
  11. blackfox macrumors 65816


    Feb 18, 2003
    responses? Seems pretty clear...
  12. numediaman macrumors 6502a

    Jan 5, 2004
    Chicago (by way of SF)
    Like a large ship at sea, it takes the press a long time to get moving and change direction. But there are a lot of newsrooms out there who don't want to be left behind in covering this story. Therefore, you are starting to see interesting stories come from unexpected places.

    This one is from the Denver Post:

    Brutal interrogation in Iraq

    Five detainees' deaths probed

    By Miles Moffeit
    Denver Post Staff Writer

    Brutal interrogation techniques by U.S. military personnel are being investigated in connection with the deaths of at least five Iraqi prisoners in war-zone detention camps, Pentagon documents obtained by The Denver Post show.

    The deaths include the killing in November of a high-level Iraqi general who was shoved into a sleeping bag and suffocated, according to the Pentagon report. The documents contradict an earlier Defense Department statement that said the general died "of natural causes" during an interrogation. Pentagon officials declined to comment on the new disclosure.

    Another Iraqi military officer, records show, was asphyxiated after being gagged, his hands tied to the top of his cell door. Another detainee died "while undergoing stress technique interrogation," involving smothering and "chest compressions," according to the documents . . .,1413,36~11676~2157003,00.html
  13. mactastic macrumors 68040


    Apr 24, 2003
    Sounds like your typical fraternity hijinks. Right?
  14. IJ Reilly macrumors P6

    IJ Reilly

    Jul 16, 2002
    Meanwhile, the key witnesses in the college prank scandal take the Fifth:
    3 Witnesses at Iraq Abuse Hearing Refused to Testify
    By Richard A. Serrano
    Times Staff Writer

    May 19, 2004

    WASHINGTON — Three key witnesses, including a senior officer in charge of interrogations, refused to testify during a secret hearing against an alleged ringleader of the Abu Ghraib prisoner abuse scandal on the grounds that they might incriminate themselves.

    The witnesses appeared April 26 at a preliminary hearing behind closed doors for Cpl. Charles A. Graner Jr., who has been identified in court-martial documents as the leader of a band of military police guards who humiliated and abused Iraqi detainees and compiled a bizarre photographic record of their activities. The prospective witnesses' refusal to testify is described in court-martial documents obtained by The Times on Tuesday.

    That all of the prospective witnesses called up by prosecutors invoked the military equivalent of the 5th Amendment right against self-incrimination indicates that key players in the abuse scandal may be closing ranks to save themselves and one another.

  15. skunk macrumors G4


    Jun 29, 2002
    Republic of Ukistan
    Phew! :cool:
  16. takao macrumors 68040


    Dec 25, 2003
    Dornbirn (Austria)

    1. the US government refers to people they caught as terrorists
    2. they call this war :"war against terror"
    3. so the opponents of the us army in this wars are 'the terrorists'
    sure they are cruel and not wearing uniforms (actually it is only needed to have a badge or clear recognition symbol on your clothes) but they are still 'soldiers' in some way

    but if they aren't soldiers (like some people say) then they should be treated like _civilian_ prisoners... especially by people who are prison gurds in their civilian lives (like 2 of the abusers)

    actually the US of A has signed a UN convention against torture


    " 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

    2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

    3. An order from a superior officer or a public authority may not be invoked as a justification of torture. "
  17. Frohickey macrumors 6502a

    Feb 27, 2003
    Are you trying to link the 'no GPW' to the prison torture? If 'no GPW' allows prison torture, why is there even any court martial for the MPs/soldiers involved?

    I think that the two are separate.
    'No GPW' because of reasons outlined in the memo; information to avoid further atrocities against American civilians, no case-by-case determination, etc.

    No prison torture because it is against the 'core humanitarian principles of the treaty as a matter of policy'.
  18. takao macrumors 68040


    Dec 25, 2003
    Dornbirn (Austria)
    what do you mean with 'GPW' ? sorry but without know what you mean with this i can't understand your point
  19. blackfox macrumors 65816


    Feb 18, 2003
    GPW stands for Prisoner of War status under Geneva Convention...

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