Crimes of War

January 2002

Excerpts from an Internal White House Memo

According to an internal White House memorandum obtained by the Washington Times on January 25, 2002, Secretary of State Colin Powell opposed the Bush Administration’s decision not to give the al Qaeda and Taliban detainees POW status.

The four-page memo, written to President Bush by White House Counsel Alberto Gonzales, summarized Powell’s position, then stated the White House counsel’s rationale for opposing the secretary of state’s.

The memo as leaked to the Washington Times included a signed cover sheet from the President’s national security advisor, Condoleezza Rice. She reportedly sent the memo to Vice President Richard Cheney, Defense Secretary Donald Rumsfeld; Attorney General John Ashcroft, CIA Director George Tenet, Joint Chiefs Chairman General Richard Myers, and Powell himself, and asked for their responses.

The following are excerpts from the memo:

"The secretary of state has requested that you reconsider that decision. Specifically, he has asked that you conclude that GPW Geneva Convention II [sic - it should be the III Geneva Convention] on the Treatment of Prisoners of War 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."

"As a matter of international law 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 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… Nevertheless, you should be aware that the legal adviser to the secretary of state has expressed a different view."

"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."

"In my judgment, 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, script (i.e., advances of monthly pay), athletic uniforms, and scientific instruments."