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White House Memo Warns War Crimes Charges Possible
(Michael Isikoff, Newsweek, 17 May 2004)
The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue. . . . The concern about possible future prosecution for war crimes - and that it might even apply to Bush administration officials themselves - is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. . . . In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes-defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S. officials" and that punishments for violators "include the death penalty," Gonzales told Bush that "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions - such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners - was "undefined." . . . One key advantage of declaring that Taliban and Al Qaeda fighters did not have Geneva Convention protections is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act," Gonzales wrote. . . . The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision - then being strongly challenged by Secretary of State Powell - to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions. . . . "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote. . . . The memos provide fresh insights into a fierce internal administration debate over whether the United States should conform to international treaty obligations in pursuing the war on terror. Administration critics have charged that key legal decisions made in the months after Sept. 11, including the White House's February 2002 declaration not to grant any Al Qaeda and Taliban fighters prisoners of war status under the Geneva Convention, laid the groundwork for the interrogation abuses that have recently been revealed in the Abu Ghraib prison in Iraq. . . . But while top White House officials publicly talked about trying Al Qaeda leaders for war crimes, the internal memos show that administration lawyers were privately concerned that they could tried for war crimes themselves based on actions the administration were taking, and might have to take in the future, to combat the terrorist threat. . . . But while the discussion in the Justice memo revolves around the possible application of the War Crimes Act to members of the U.S. military, there is some reason to believe that administration lawyers were worried that the law could even be used in the future against senior administration officials. . . . One lawyer involved in the interagency debates over the Geneva Conventions issue recalled a meeting in early 2002 in which participants challenged Yoo, a primary architect of the administration's legal strategy, when he raised the possibility of Justice Department war crimes prosecutions unless there was a clear presidential direction proclaiming the Geneva Conventions did not apply to the war in Afghanistan. The concern seemed misplaced, Yoo was told, given that loyal Bush appointees were in charge of the Justice Department. . . . "Well, the political climate could change," Yoo replied, according to the lawyer who attended the meeting. "The implication was that a new president would come into office and start potential prosecutions of a bunch of ex-Bush officials," the lawyer said. . . . This appears to be precisely the concern in Gonzales's memo dated January 25, 2002, in which he strongly urges Bush to stick to his decision to exempt the treatment of Taliban and Al Qaeda fighters from the provisions of the Geneva Conventions. . . . One reason to do so, Gonzales wrote, is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act."

posted by LoZo 7:21 PM