In the Penal Colony (Page 2)

The primary documents in these two collections--memos and interrogation policy directives--were written over the span of two years to guide and wage the "global war on terror" (or GWOT, the official acronym). The earliest memos, dating from late December 2001 and early January 2002, introduced the rationale for declaring the Geneva Conventions inapplicable and the advantages of Guantánamo as a prison and interrogation center. The principal intellectual author of these and many subsequent memos is John Yoo, a University of California, Berkeley, law professor who served in the Justice Department's Office of Legal Counsel from 2001 to 2003. Yoo and his OLC colleagues reasoned that the President has the constitutional authority to declare the Geneva Conventions irrelevant to the war in Afghanistan on the grounds that it is a "failed state," and to deny prisoner of war status to the Taliban and Al Qaeda as nonstate actors and terrorists who have no rights under international humanitarian law. Such a declaration would increase flexibility for harsh interrogation, reduce the risk that Americans could be prosecuted for torture or war crimes, and enable captives to be transported to Guantánamo (or other US-controlled secret detention facilities), where they would have no habeas corpus rights and could be held incommunicado indefinitely. While the OLC lawyers hedged their views as legal opinions, a January 25, 2002, memo from Gonzales to President Bush characterized their positions as "definitive," while noting that the State Department disagreed. (The Washington Post reported on January 5, 2005, that this memo was ghost-written by Vice President Dick Cheney's counsel David Addington.)

Gonzales counseled the President that there is no crime if there is no law, one good reason to declare the Geneva Conventions "obsolete." To drive home the point, he noted that the War Crimes Act of 1996, which gives domestic courts jurisdiction to prosecute Americans or anyone else for grave breaches of the Geneva Conventions, carries penalties up to the death penalty. He added, forebodingly: "It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on [the War Crimes Act]." Immediately after, Secretary of State Colin Powell sent a memo to Gonzales criticizing the faultiness and dangers of this reasoning. Perhaps with the "Pinochet precedent" (i.e., no sovereign immunity for torture) in mind, he warned that if the United States declined to adhere to the Geneva Conventions, the effect might be to "provoke some individual foreign prosecutors to investigate and prosecute our officials and troops."

Ashcroft weighed in with his own memo on February 1, presenting the President with two clear choices: A "presidential determination" that the Geneva Conventions are inapplicable (i.e., the OLC position) would have status as the law of the land, and this would insure that no court would be able to "entertain charges" against American military officers, intelligence agents or law-enforcement officials for any violations. A "presidential interpretation" that the Geneva Conventions apply, even if POW status was not extended to the Taliban (i.e., the State Department position), would put US officials and agents at risk because courts "occasionally refuse to defer to presidential interpretation." Ashcroft was goading the President with the bogyman of "activist judges," a Federalist Society obsession.

The prospect that the OLC's line of reasoning might prevail raised alarms at the State Department, evident in a February 2 memo by legal adviser William Taft IV to Gonzales: "A decision that the Conventions apply...demonstrates that the United States bases its conduct not just on its policy preferences but on its international legal obligations." Five days later, in a resounding defeat for the State Department, President Bush endorsed the OLC's analysis in a secret memorandum to his National Security team, while seeking to mollify the losers with the line that US 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." Since all these memos were classified at the time, the public was only aware of the outcomes--no Geneva Conventions, no prisoner status review hearings, no habeas corpus or judicial oversight--not the legal reasoning or ideological preferences and panics that produced them.

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