Secretary of State Colin Powell wrote a memo to follow-up on the January 25, 2002 State Department memorandum to the George W. Bush, entitled “Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict With al Qaeda and the Taliban”, which contended the Justice Department’s judgment that the Geneva Convention did not apply to prisoners held at Guantanamo Bay, Cuba.

Powell was “concerned that the draft does not squarely present to the President the options that are available to him.” Powell hoped “that the final memorandum will make clear that the President’s choice is between” two options. The first option was the decision to “Determine that the Geneva Convention on the treatment of Prisoners of War (GPW) does not apply” to the war in Afghanistan. The second option would have been to “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.” Both options called for treating “all detainees consistent with the principles of the GPW”.

In other words, the options were between announcing the inapplicability of the Geneva Conventions to the “war on terrorism” or announcing that they applied, but just not to anybody the United States chose to deem a member of “al Qaeda” or “the Taliban”, since they would not be “entitled” to “Prisoner of War status” anyhow.

Powell wished to ensure that George W. Bush understood that “there is no difference between” these two options in several respects. Both options would “provide the same practical flexibility in how we treat detainees, including with respect to interrogation and length of the detention”, and also “allow us not to give the privileges and benefits of POW status”.

“Neither option”, Powell noted, “entails any significant risk of domestic prosecution against U.S. officials.”

Powell went on to list some of the pros and cons of each decision. Were the U.S. to declare the Geneva Convention does not apply, it would provide “maximum flexibility” for the detainment and treatment of prisoners. But, he notes, it would also “undermine the protections of the law of our war for our troops”, have a “high cost in terms of negative international reaction”, would “undermine public support among critical allies”, and might “provoke some individual foreign prosecutors to investigate and prosecute our officials and troops.”

If the decision was made to apply the Geneva Convention, it would preserve “flexibility under both domestic and international law”, present “a positive international posture” that would preserve “U.S. credibility and moral authority”, maintain “POW status for U.S. forces”, and reduce “incentives for international criminal investigations directed against U.S. officials and troops.” On the other hand, it might also lead to the determination that some detainees would be “entitled to POW status”; but “This would not, however, affect their treatment as a practical matter.”

Suggesting amendments to specific sections of the draft memorandum, Powell adds, with regard to the argument that the Geneva Conventions do not apply based on Afghanistan being a “failed state”, that such a determination “would be contrary to the U.S. government position”, since both the U.S. “and the international community have consistently held Afghanistan to its treaty obligations and identified it as a party to the Geneva Conventions.”

With respect to the draft memorandum argument that the Justice Department’s Office of Legal Council “interpretation of this legal issue is definitive” and that “This interpretative authority extends to both domestic and international law”, Powell notes that “the OLC interpretation does not preclude the President from reaching a different conclusion”, and that “the OLC opinion is likely to be rejected by foreign governments and will not be respected in foreign courts or international tribunals”.

Powell refers to the draft memorandum’s identification of “several positive consequences if the President determines the GPW does not apply” and suggests that the memo “note that these consequences would result equally if the President determines that the GPW does apply but that the detainees are not entitled to POW status.” Regarding the negative consequences, Powell suggests that the line that states, “During the last Bush Administration, the United States stated that it ‘as a policy of applying the Geneva Conventions of 1949 whenever armed hostilities occur with regular foreign armed forces…'” is “taken out of context and should be omitted.”

And while the draft memo argued that “the arguments for reconsideration and reversal” of the Justice Department’s determination “are unpersuasive”, because, in part, “this is a new type of warfare–one not contemplated in 1949 when GPW was framed–and requires a new approach in our actions towards captured terrorists”, Powell notes that “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.”

Finally, concerning the draft memo’s argument that “the U.S. will continue to be constrained by… its commitment to treat the detainees humanely”, by “its applicable treaty obligations”, by “minimum standards of treatment universally recognized by the nations of the world”, and by “applicable military regulations regarding the treatment of detainees”, Powell states that “The point is not clear” because “If we intend to conform our treatment of the detainees to universally recognized standards, we will be complying with the GPW.”

What Powell failed to point out, however, was that if the U.S. government did not intend to conform the treatment of detainees to universally recognized standards, then the U.S. would not be complying with the Geneva Conventions, and the draft memorandum’s point would thus be perfectly clear, indeed.

Expressing that point, after all, seemed to be the whole point of the memo to begin with. The only point that remains unclear, then, is whether the Secretary of State was truly unaware of the intention to treat detainees contrary to International Humanitarian Law, whether he was perfectly aware of this intention and merely feigning ignorance for political insurance, or whether he was suggesting that this ambiguity be cleared up by expressing this intent in no uncertain terms.

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