Legal Arguments for Avoiding the Jurisdiction of the Geneva Conventions
Legal arguments for avoiding the jurisdiction of the Geneva Conventions commenced prior to November 13, 2001, when President George W. Bush issued the President's Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism in response to the events of September 11, 2001.
Also see Jennifer Elsea, "Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions," Congressional Record Service, updated December 11, 2001; "This report supercedes 'Trying Terrorists as War Criminals', RS21056 (Oct. 29, 2001), a summary treatment of the military tribunal issue prepared prior to the issuance of President Bush's Order of November 13, 2001."
The President's Order is subsequently referenced by John C. Yoo and James C. Ho in their August 1, 2003, "International Law and the War on Terrorism." Yoo and Ho state that their paper will "identify and discuss two legal questions raised by the war on terrorism that have generated significant controversy among academics and public commentators.
- "First, did the September 11, 2001 attacks initiate a war, or 'international armed conflict' to use the vocabulary of modern public international law?
- "Second, what legal rules govern the status and treatment of members of the al Qaeda terrorist network and the Taliban militia that harbored and supported them in Afghanistan?"
Yoo and Ho inform:
- "In short, the United States government has concluded that the attacks of September 11 have placed the United States in a state of armed conflict, to which the laws of war apply. It has also determined that members of the al Qaeda terrorist network and the Taliban militia are illegal combatants under the laws of war, and so cannot claim the legal protections and benefits that accrue to legal belligerents, such as prisoner of war status under the Third Geneva Convention of 1949."
- In no section of the President's Military Order is reference made either directly or indirectly to the Geneva Conventions.
Michael Isikoff, in the May 22, 2004, online issue of Newsweek asks "Double Standards? A Justice Department memo proposes that the United States hold others accountable for international laws on detainees--but that Washington did not have to follow them itself."
- The "crucial" January 9, 2002, draft memo 'Application of Treaties and Laws to Al Qaeda and Taliban Detainees' written by lawyers John C. Yoo and Robert J. Delahunty, described as "key members" of the Department of Justice's Office of Legal Counsel, "a unit that provides legal advice to the White House and other executive-branch agencies," "advised that President George W. Bush and the U.S. military did not have to comply with any international laws in the handling of detainees in the war on terrorism."
- The memo "argued that the Geneva Conventions on the treatment of prisoners of war did not apply to any Taliban or Al Qaeda fighters being flown to the detention center at Guantanamo Bay, Cuba, because Afghanistan was a 'failed state' whose militia did not have any status under international treaties."
- The memo, Isikoff writes, "went far beyond that conclusion, explicitly arguing that no international laws--including the normally observed laws of war--applied to the United States at all because they did not have any status under federal law." And, it "was that conclusion, say some critics, that laid the groundwork for aggressive interrogation techniques that led to the abuses at the Abu Ghraib prison in Iraq."
- "At the same time, and even more striking," Isikoff adds, "according to critics, the memo explicitly proposed a de facto double standard in the war on terror in which the United States would hold others accountable for international laws it said it was not itself obligated to follow.
- "After concluding that the laws of war did not apply to the conduct of the U.S. military, the memo argued that President Bush could still put Al Qaeda and Taliban fighters on trial as war criminals for violating those same laws. While acknowledging that this may seem 'at first glance, counter-intuitive,' the memo states this is a product of the president's constitutional authority 'to prosecute the war effectively.'"
- "Yoo also coauthored another OLC memo [dated December 28, 2001] entitled 'Possible Habeas Jurisdiction Over Aliens Held in Guantanamo Bay, Cuba,' that concluded that U.S. courts could not review the treatment of prisoners at the base."
- "Critics say the memos' disregard for the United States' treaty obligations and international law paved the way for the Pentagon to use increasingly aggressive interrogation techniques at Guantanamo Bay--including sleep deprivation, use of forced stress positions and environmental manipulation--that eventually were applied to detainees at the Abu Ghraib prison in Iraq. The customary laws of war, as articulated in multiple international treaties and conventions dating back centuries, also prohibit a wide range of conduct such as attacks on civilians or the murder of captured prisoners," Isikoff writes.
- "At the time it was written," Isikoff says, "the memo also prompted a strong rebuttal from the State Department's Legal Advisor's office headed by William Howard Taft IV. In its own Jan. 11, 2002, response to the Justice draft, Taft's office warned that any presidential actions that violated international law would 'constitute a breach of an international legal obligation of the United States' and 'subject the United States to adverse international consequences in political and legal fora and potentially in the domestic courts of foreign countries.'
- "'The United States has long accepted that customary international law imposes binding obligations as a matter of international law,' reads the State Department memo, which was also obtained by NEWSWEEK. 'In domestic as well as international fora, we often invoke customary international law in articulating the rights and obligations of States, including the United States. We frequently appeal to customary international law.' The memo then cites numerous examples, ranging from the U.S. Army Field Manual on the Law of Land Warfare ('The unwritten or customary law of war is binding upon all nations,' it reads) to U.S. positions in international issues such as the Law of the Sea.
- "But the memo also singled out the potential problems the Justice Department position would have for the military tribunals that President Bush had recently authorized to try Al Qaeda members and suspected terrorists. Noting that White House counsel Alberto R. Gonzales had publicly declared that the persons tried in such commissions would be charged with 'offenses against the international laws of war,' the State Department argued that the Justice position would undercut the basis for the trials.
- "'We are concerned that arguments by the United States to the effect that customary international law is not binding will be used by defendants before military commissions (or in proceedings in federal court) to argue that the commissions cannot properly try them for crimes under international law,' the State memo reads. 'Although we can imagine distinctions that might be offered, our attempts to gain convictions before military commissions may be undermined by arguments which call into question the very corpus of law under which offenses are prosecuted.'"
In his May 21, 2004, New York Times article "Justice Memos Explained How to Skip Prisoner Rights," Neil A. Lewis discusses Yoo's role in the government's position.
- In a series of "confidential" memorandums written for the Department of Justice in late 2001 and early 2002, "several of which were written or co-written by John C. Yoo, a University of California law professor who was serving in the department, provided arguments to keep United States officials from being charged with war crimes for the way prisoners were detained and interrogated."
- Lewis writes that the memorandums "were endorsed by top lawyers in the White House, the Pentagon and the vice president (Dick Cheney)'s office but drew dissents from the State Department."
- Most significantly, Lewis states, the "memorandums provide legal arguments to support administration officials' assertions that the Geneva Conventions did not apply to detainees from the Afghanistan war. They also suggested how officials could inoculate themselves from liability by claiming that abused prisoners were in some other nation's custody."
- "One of the memorandums written by Mr. Yoo along with Robert J. Delahunty, another Justice Department lawyer, was prepared on Jan. 9, 2002, four months after the terrorist attacks in New York and Washington." Lewis says that the "42-page memorandum, entitled, 'Application of treaties and laws to Al Qaeda and Taliban detainees,' provided several legal arguments for avoiding the jurisdiction of the Geneva Conventions."
- Lewis says that a "lawyer and a former government official who saw the memorandum said it anticipated the possibility that United States officials could be charged with war crimes, defined as grave breaches of the Geneva Conventions. The document said a way to avoid that is to declare that the conventions do not apply."
- "The memorandum, addressed to William Haynes II, the Pentagon's general counsel, said that President Bush could argue that the Taliban government in Afghanistan was a 'failed state' and therefore its soldiers were not entitled to protections accorded in the conventions. If Mr. Bush did not want to do that, the memorandum gave other grounds, like asserting that the Taliban was a terrorist group. It also noted that the president could just say that he was suspending the Geneva Conventions for a particular conflict."
- Lewis cites "Another memorandum from the Justice Department [which] advises officials to create a situation in which they could plausibly claim that abused prisoners were never in United States custody. 
- "That memorandum, whose existence was acknowledged by two former officials, noted that it would be hard to ward off an allegation of torture or inhuman treatment if the prisoner had been transferred to another country from American custody. International law prohibits the 'rendition' of prisoners to countries if the possibility of mistreatment can be anticipated.
- "The former officials said that memorandum was explicit in advising that if someone were involved in interrogating detainees in a manner that could cross the line into torture or other prohibited treatment, that person could claim immunity only if he or she contended that the prisoner was never in United States custody."
- Hesiod at Counterspin Central comments on May 21, 2004:
- "That explains why the Solicitor General (Theodore B. Olson) made the preposterous argument that the detainees in Guantanamo Cuba are not, technically, under U.S. jurisdiction.
- "It also explains the tortured logic (excuse the pun) and legal gymnastics they invoked when defending against the Jose Padilla and Yaser Hamdi cases before the Supreme Court.
- "They [the Bush administration] can't LOSE. If they lose, they open themselves up to war crimes prosecutions!"
Doughlas Jehl and Neil A. Lewis, "U.S. Disputed Protected Status of Iraq Inmates," New York Times, May 23, 2004
- "Presented last fall with a detailed catalog of abuses at Abu Ghraib prison, the American military responded on Dec. 24 with a confidential letter asserting that many Iraqi prisoners were not entitled to the full protections of the Geneva Conventions.
- "The letter, drafted by military lawyers and signed by Brig. Gen. Janis Karpinski, emphasized the 'military necessity' of isolating some inmates at the prison for interrogation because of their 'significant intelligence value,' and said that prisoners held as security risks could legally be treated differently from prisoners of war or ordinary criminals."
On February 7, 2002, President Bush "reversed himself" and "declared that captured combatants who fought for Afghanistan's Taliban regime will be formally covered by the Geneva Conventions. But the president refused to confer that status on detainees who are members of the al Qaeda terrorist network." 
White House officials said that Bush distinguished the Taliban from the al Qaeda network "on the grounds that the nation of Afghanistan was a party to the Geneva Conventions, while Osama bin Laden's al Qaeda network never signed the global accords." 
Additionally, Bush's decision had "no practical effect on the 186 prisoners [then held] at the U.S. naval base at Guantanamo Bay, Cuba, leaving the day-to-day conditions of their captivity unchanged." 
Road to Abu Ghraib
In the May 24, 2004, issue of Newsweek, John Barry, Michael Hirsh and Michael Isikoff, in "The Roots of Torture. The road to Abu Ghraib began after 9/11, when Washington wrote new rules to fight a new kind of war," write
- "... as a means of pre-empting a repeat of 9/11, George W. Bush, along with Defense Secretary Donald Rumsfeld and Attorney General John Ashcroft, signed off on a secret system of detention and interrogation that opened the door to" allegations of acts of brutality, abuse, and torture.
- "It was," they write, "an approach that they adopted to sidestep the historical safeguards of the Geneva Conventions, which protect the rights of detainees and prisoners of war. In doing so, they overrode the objections of Secretary of State Colin L. Powell and America's top military lawyers--and they left underlings to sweat the details of what actually happened to prisoners in these lawless places."
- "The Bush administration created a bold legal framework to justify this system of interrogation, according to internal government memos obtained by Newsweek. What started as a carefully thought-out, if aggressive, policy of interrogation in a covert war--designed mainly for use by a handful of CIA professionals--evolved into ever-more ungoverned tactics that ended up in the hands of untrained MPs in a big, hot war. Originally, Geneva Conventions protections were stripped only from al Qaeda and Taliban prisoners. But later Rumsfeld himself, impressed by the success of techniques used against Qaeda suspects at Guantanamo Bay, seemingly set in motion a process that led to their use in Iraq, even though that war was supposed to have been governed by the Geneva Conventions. Ultimately, reservist MPs, like those at Abu Ghraib, were drawn into a system in which fear and humiliation were used to break prisoners' resistance to interrogation."
- "By Jan. 25, 2002, according to a memo obtained by Newsweek, it was clear that Bush had already decided that the Geneva Conventions did not apply at all, either to the Taliban or Al Qaeda. In the memo, which was written to Bush by Alberto R. Gonzales, the White House legal counsel ... [who] laid out startlingly broad arguments that anticipated any objections to the conduct of U.S. soldiers or CIA interrogators in the future. 'As you have said, the war against terrorism is a new kind of war,' Gonzales wrote to Bush. '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.' Gonzales concluded in stark terms: 'In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.'"
- Michael Isikoff, "Memos Reveal War Crimes Warnings. Could Bush administration officials be prosecuted for 'war crimes' as a result of new measures used in the war on terror? The White House's top lawyer thought so," Newsweek, May 17, 2004.
- "White House memo shifts abuse inquiry's focus. Pentagon confronts fresh assertions in Newsweek, The New Yorker," MSNBC News Service, May 16, 2004: "The focus of the Iraq prisoner abuse scandal shifted Sunday with a report in Newsweek magazine on whether the Bush administration established a legal basis that opened the door for the mistreatment."
- Jake Tapper and Clayton Sandell, "JAG Lawyers Say Political Appointees Ignored Their Warnings on Prisoner Treatment," ABC News, May 16, 2004: "Specifically, JAG officers say they have been marginalized by Douglas Feith, undersecretary of defense for policy, and William Haynes II, the Pentagon's general counsel, whom President Bush has nominated for a judgeship on the United States Court of Appeals for the Fourth Circuit."
Related SourceWatch Resources
- Abu Ghraib (Additional SourceWatch Resources)
- Abu Ghraib (External Links)
- enemy combatant
- Enemy Prisoner of War
- Executive Orders
- Guantanamo Camp Xray
- Military Commissions Act of 2006
- Office of Military Commissions
- State of national emergency
- State of the Union 2003
- Trading With the Enemy Act
- war on freedom
- "Law and the War on Terrorism," Harvard Journal of Law and Public Policy, Volume 25, Number 2, Spring 2002
- Project to Enforce the Geneva Conventions (PEGC) 
- William J. Haynes II, "Enemy Combatants," Council on Foreign Relations' Rountable on "Old Rules, New Threats", November 2002 to Present.
- Jennifer K. Elsea, "Presidential Authority to Detain "Enemy Combatants"," Congressional Record Service.
- Spencer J. Crona and Neal A. Richardson,"Justice For War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism," Oklahoma City University Law Review, Summer/Fall 1996.
- John C. Yoo, "The Continuation of Politics by Other Means: The Original Understanding of War Powers," 84 California Law Review 167 (1996): "Congress has a broad range of legislative authority it can use to stop a President's war making."
- John C. Yoo, "UN Wars, US War Powers," Chicago Journal of International Law, Volume 1, Number 2 (2000). Published online by Westlaw (by subscription).
- Louis Fisher, Military Tribunals: The Quirin Precedent," Congressional Record Service, March 26, 2002.
- Robert J. Delahunty and John C. Yoo, "The President's Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them," Boalt Working Papers in Public Law, June 1, 2002.
- John C. Yoo, "War and the Constitutional Text," Boalt Working Papers in Public Law, June 1, 2002: a "complete textual and structural theory of a flexible approach to war powers."
- The Legality and Constitutionality of the President's Authority to Initiate an Invasion of Iraq. A Report of The Committee on International Security Affairs of the Association of the Bar of the City of New York, July 2002.
- Anthony Dworkin, "Law and the Campaign Against Terrorism: The View from the Pentagon," Crimes of War, December 16, 2002: Interview with Charles Allen, the Deputy General Counsel for International Affairs at the Department of Defense. "Allen gave a full account of the legal framework that, according to the Pentagon, governs the deployment of U.S. military forces in the campaign against al-Qaeda and the detention under military authority of suspected al-Qaeda and Taliban fighters."
- John C. Yoo, "International Law and the War in Iraq," Boalt Working Papers in Public Law, July 1, 2003.
- John C. Yoo and James C. Ho, "International Law and the War on Terrorism," University of California, Berkeley, August 1, 2003.
- John C. Yoo, "Testimony Before the Subcommittee on the Constitution, Committee on the Judiciary, United States Senate. Hearing on "Constitutionalism, Human Rights, and the Rule of Law in Iraq," June 25, 2003.
- John C. Yoo and James C. Ho, "The Status of Terrorists," Boalt Working Papers in Public Law, August 27, 2003.
- Jennifer K. Elsea, "Treatment of "Battlefield Detainees" in the War on Terrorism," Congressional Record Service, September 17, 2003.
- Jennifer K. Elsea, "Detention of American Citizens," Congressional Record Service, updated March 15, 2004.
- Mary Ellen O'Connell, "What is War?", Jurist, March 17, 2004.
- American Civil Liberties Union, "The Government Must Stop Using Secret Evidence Against Immigrants." Re H.R.1266. To ensure that no alien is removed, denied a benefit under the Immigration and Nationality Act, or otherwise deprived of liberty, based on evidence that is kept secret from the alien." Last Major Action: April 19, 2001: Referred to the Subcommittee on Immigration and Claims.
- Thom Shanker and Katherine Q. Seelye, "Behind-the-scenes clash led Bush to reverse himself on applying Geneva Conventions," New York Times, February 22, 2002: "President Bush's decision this month to reverse himself and apply the Geneva Conventions to the Afghan war came after the Pentagon and State Department lined up against the administration's top lawyers, senior administration officials now say. ... Senior officials also disclosed for the first time that NATO allies were so concerned with Mr. Bush's initial decision to reject the conventions that Britain and France warned they might not turn over Taliban and Al Qaeda fighters captured by their troops in Afghanistan unless Mr. Bush pledged to honor the treaties." Also see Christopher Bollyn, "Secretary of State Gravely Concerned About Flouting of Geneva Convention," American Free Press (date unknown): "A kidnapped American journalist became the first victim of reprisal for a policy the Secretary of State tried to avoid--the illegal detention of captured Afghan fighters in Cuba."
- Joseph Deiss, "The Geneva Conventions Must Be Applied in Full," International Herald Tribune, April 23, 2002.
- James Ridgeway, "The Lawyers Behind Bush's Attack on Civil Liberties," Village Voice, June 19, 2002.
- Dana Priest and Barton Gellman, "U.S. Decries Abuse but Defends Interrogations. 'Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities," Washington Post, December 26, 2002.
- Anthony Dworkin, "Revising the Laws of War to Account for Terrorism: The Case Against Updating the Geneva Conventions, On the Ground That Changes Are Likely Only to Damage Human Rights," FindLaw's Writ, February 4, 2003.
- Warren Richey, "Iraq prisoners pose new test for Geneva Conventions. Both sides have taken prisoners, but the US faces burden of being viewed as global role model on POWs," Christian Science Monitor, March 26, 2003.
- Charles Lane, "Thinking Outside the US," Washington Post, August 4, 2003: The Supreme Court's "own decision-making is beginning to reflect the influence of international legal norms, as well as rulings by courts in foreign countries."
- Andrew Gumbel, "How Camp Delta Allowed US to Avoid Geneva Convention," Independent/UK, January 20, 2004.
- Letter from Members of the House Judiciary Committee to Attorney General John Ashcroft "to request that you appoint a special counsel to investigate whether high ranking officials within the Bush Administration violated War Crimes Act , 18 U.S.C. 2441, by approving the use of torture techniques banned by international law. May 20, 2004.
- "Bush to sign law authorizing harsh interrogation," Reuters, October 17, 2006.
- Dan Eggen, "CIA Acknowledges 2 Interrogation Memos. Papers Called Too Sensitive for Release," Washington Post, November 14, 2006.