WASHINGTON, May 20 — A series of Justice Department memorandums written in late 2001 and the first few months of 2002 were crucial in building a legal framework for United States officials to avoid complying with international laws and treaties on handling prisoners, lawyers and former officials say.
The confidential memorandums, 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. They were endorsed by top lawyers in the White House, the Pentagon and the vice president’s office but drew dissents from the State Department.
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.
Human Rights Watch
The methods of detention and interrogation used in the Afghanistan conflict, in which the United States operated outside the Geneva Conventions, is at the heart of an investigation into prisoner abuse in Iraq in recent months. Human rights lawyers have said that in showing disrespect for international law in the Afghanistan conflict, the stage was set for harsh treatment in Iraq.
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. 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.
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 J. Haynes, 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.
Prof. Detlev Vagts, an authority on international law and treaties at Harvard Law School, said the arguments in the memorandums as described to him “sound like an effort to find loopholes that could be used to avoid responsibility.”
One former government official who was involved in drafting some of the memorandums said that the lawyers did not make recommendations but only provided a range of all the options available to the White House.
On Jan. 25, 2002, Alberto R. Gonzales, the White House counsel, in a memorandum to President Bush, said that the Justice Department’s advice was sound and that Mr. Bush should declare the Taliban as well as Al Qaeda outside the coverage of the Geneva Conventions. That would keep American officials from being exposed to the federal War Crimes Act, a 1996 law, which, as Mr. Gonzales noted, carries the death penalty.
The Gonzales memorandum to Mr. Bush said that accepting the recommendations of the Justice Department would preserve flexibility in the global war against terrorism. “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,” said the memorandum, obtained this week by The New York Times. The details of the memorandum were first reported by Newsweek.
Mr. Gonzales wrote that the war against terrorism, “in my judgment renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.”
Mr. Gonzales also says in the memorandum that another benefit of declaring the conventions inapplicable would be that United States officials could not be prosecuted for war crimes in the future by prosecutors and independent counsels who might see the fighting in a different light.
He observed, however, that the disadvantages included “widespread condemnation among our allies” and that other countries would also try to avoid jurisdiction of the Geneva Conventions. It also meant that the United States might have difficulty in invoking the conventions in protecting its own personnel who might be captured by an enemy.
Another memorandum from the Justice Department 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.
The Gonzales memorandum provoked a response from Secretary of State Colin L. Powell on Jan. 26 in which he strongly suggested that the advantages of applying the Geneva Conventions far outweighed their rejection. He said bluntly that declaring the conventions inapplicable would “reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops.” He also said he would “undermine public support among critical allies.”
Douglas Jehl contributed reporting for this article.