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White House counsel weights pros, cons of abandoning Geneva

WASHINGTON—White House Counsel Alberto Gonzales on Jan. 25, 2002, wrote a memo to President Bush on the pros and cons of reconsidering his decision to deny Geneva Convention protections to prisoners captured in the war on terrorism. The complete memo can be found at

Some excerpts:

I understand that you decided that (Geneva) does not apply and, accordingly, that al-Qaida and Taliban detainees are not prisoners of war under Geneva.

The Secretary of State has requested that you reconsider that decision. Specifically, he has asked that you conclude that Geneva does apply to both al-Qaida and Taliban.

Positive consequences (of overriding Geneva Convention protections):

_ This is not a traditional clash between nations ... the nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists in order to avoid further atrocities.

_ This new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.

_ Preserves flexibility ... we avoid foreclosing options for the future, particularly against nonstate actors.

_ This substantially reduces the threat of domestic criminal prosecution under the 1996 War Crimes Act.

Negative (summarizing arguments made by Secretary of State Colin Powell):

_ Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to forces engaged in armed conflict, despite several opportunities to do so.

_ The United States could not invoke Geneva if enemy forces threatened to mistreat U.S. forces captured in Afghanistan.

_ Our position would likely provoke widespread condemnation among our allies, even if we make clear that we will comply with the core humanitarian principles of the treat.

_ This may encourage other countries to look for technical `loopholes' in future conflicts to conclude that they are not bound by Geneva either.

_ This could undermine U.S. military culture, which emphasizes maintaining the highest standards of conduct, and could introduce an element of uncertainty in the status of adversaries.

On balance, (Gonzales wrote) I believe the arguments for reconsideration and reversal are unpersuasive. (The Geneva Convention) does not apply to a conflict with terrorists, or with irregular forces, like the Taliban, who are armed militants that terrorized the people of Afghanistan ...

Your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers.


(c) 2004, Knight Ridder/Tribune Information Services.