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To: Interested Parties
From: Robert O. Boorstin

New information was revealed today indicating that decisions by Bush administration political appointees to ignore the advice of senior military and State Department officials led directly to the types of abuses seen in U.S. detention facilities in Iraq and elsewhere.

Michael Isikoff of Newsweek has uncovered two internal administration memos – a draft memorandum from White House Chief Counsel Alberto Gonzales recommending that the Geneva Conventions not be applied to the conflict in Afghanistan and an urgent response from Secretary of State Colin Powell disagreeing with that recommendation and many of Gonzales’ arguments.

In a report on, meanwhile, Jake Tapper and Clayton Sandell quote two former Judge Advocates General (JAG) who charge that the uniformed military was overruled when it tried to make sure the Geneva Conventions be applied to all detainees in U.S. custody.

The memoranda and interviews also make clear:

  • Senior Bush political appointees devised a legal basis to systematically circumvent the requirements of the Geneva Conventions largely to protect themselves from future domestic prosecution for war crimes.
  • Objections and warnings from Secretary of State Colin Powell, his legal advisor, and senior Pentagon officials were brushed aside.
  • The former JAGs state flatly that had their advice been heeded, the abuses in U.S. facilities would not have happened.

In his memo, Gonzales demonstrates an enormous talent for justifying setting aside a century of U.S. policy. Highlights of the memo to President Bush (January 25, 2002):

  • Gonzales says the “new paradigm” of the war on terrorism “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”
  • Gonzales outlines the pros and cons of applying the Geneva Conventions to al Qaeda and Taliban detainees. He is prescient in his prediction that a failure to apply the Conventions across the board “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.”
  • He rejects his own argument, concluding that “our military remains bound to apply the principles of GPW [Geneva Conventions on Prisoners of War] because that is what you have directed them to do.”
  • Gonzales also notes that “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 (of the US code, the War Crimes Act). Your determination [to bypass the Geneva Conventions] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.”

The response from Secretary Powell – dispatched one day later – takes issue with Gonzales’ arguments and conclusions. Highlights of the memo to Gonzales and Condoleezza Rice:

  • Powell and his legal adviser William H. Taft IV argue: “It [declaring Geneva does not apply] will reverse over a century of U.S. policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.”
  • The memo also says that removing the protections of the Geneva Conventions from certain detainees would undermine U.S. detention policies at Guantanamo Bay and weaken our ability to hold potential terrorists. “The Geneva Conventions are a more flexible and suitable legal framework than other laws that would arguable (sic) apply,” the memo contends. “Determining GPW does not apply deprives us of a wining (sic) argument to oppose habeas corpus actions in U.S. courts.”

The report presents unusually stark condemnation by two former JAGs, who argue that their warnings were ignored.

  • “‘If we – ‘we’ being the uniformed lawyers – had been listened to, and what we said put into practice, then these abuses would not have occurred,’ said Rear Admiral Don Guter (ret.), the Navy Judge Advocate General from 2000 to 2002.”
  • “‘When you say something down the chain of command like, ‘The Geneva conventions don’t apply,’ that sets the stage for the kind of chaos that we’ve seen,’ said Rear Admiral John Hutson (ret.), who was the Navy Judge Advocate General from 1997 to 2000.”

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