Bush & Co. Declared Geneva Convention Obsolete and Quaint
"As you have said, the war against terrorism is a new kind of war," White House counsel Alberto Gonzales wrote to Bush on Jan 25, 2002. Gonzales concluded in stark terms: "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."
NEWSWEEK: Detention, Interrogation That Opened Door to Methods Used at Abu Ghraib
Sunday May 16, 10:49 am ET
Bush Had Decided That Geneva Conventions Did Not Apply to Taliban, Al Qaeda By Jan. 2002, According to Memo
NEW YORK, May 16 -- While it is unlikely that President George W. Bush or senior officials ever knew of the specific techniques used at Iraq's Abu Ghraib prison, a Newsweek investigation shows that, as a means of preempting a repeat of 9/11, Bush, along with Defense Secretary Rumsfeld and Attorney General John Ashcroft, signed off on a secret system of detention and interrogation that opened the door to such methods, report National Security Correspondent John Barry, Senior Editor Michael Hirsh and Investigative Correspondent Michael Isikoff in the May 24 issue of Newsweek (on newsstands Monday May 17). And while there is no telling where the scandal will bottom out, Newsweek has learned that U.S. soldiers and CIA operatives could be accused of war crimes. Among the possible charges: homicide involving deaths during interrogations.
By Jan. 25, 2002, according to a memo obtained by Newsweek, it was clear that President George W. Bush had already decided that the Geneva Conventions did not apply at all, either to the Taliban or Al Qaeda. In the memo, written to Bush by White House counsel Alberto Gonzales, Gonzales laid out startlingly broad arguments that anticipated any objections to the conduct of U.S. soldiers or CIA interrogators in the future. "As you have said, the war against terrorism is a new kind of war," Gonzales wrote to Bush. Gonzales concluded in stark terms: "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."
In the months after Sept. 11, a small band of conservative lawyers within the Bush administration staked out a forward-leaning legal position in which the rules of war, international treaties and even the Geneva Conventions did not apply. These positions were laid out in secret legal opinions drafted by lawyers from the Justice Department's Office of Legal Counsel, and then endorsed by Department of Defense and ultimately Gonzales, according to copies of the opinions and other internal legal memos obtained by Newsweek. The Bush administration's emerging approach was that America's enemies in this war were "unlawful" combatants without rights.
One Justice Department memo, written for the CIA late in the fall of 2001, put an extremely narrow interpretation on the international anti-torture convention, allowing the agency to use a whole range of techniques-including sleep deprivation, the use of phobias and the deployment of "stress factors" -- in interrogating Qaeda suspects. The only clear prohibition was "causing severe physical or mental pain" -- a subjective judgment that allowed for "a whole range of things in between," says one former administration official familiar with the opinion.
On Dec. 28, 2001, the Justice Department Office of Legal Counsel weighed in with another opinion, arguing that U.S. courts had no jurisdiction to review the treatment of foreign prisoners at Guantanamo Bay. The appeal of Gitmo from the start was that, in the view of administration lawyers, the base existed in a legal twilight zone -- or "the legal equivalent of outer space," as one former administration lawyer described it. And on Jan. 9, 2002, John Yoo of Justice's Office of Legal Counsel coauthored a sweeping 42-page memo concluding that neither the Geneva Conventions nor any of the laws of war applied to the conflict in Afghanistan.
When State Department lawyers first saw the Yoo memo, "we were horrified," said one. Two days after the Yoo memo circulated, the State Department's chief legal adviser, William Howard Taft IV, fired a memo to Yoo calling his analysis "seriously flawed." Similarly, when Powell read the Gonzales memo, he "hit the roof," says a State source. Desperately seeking to change Bush's mind, Powell fired off his own blistering response the next day, Jan. 26, and sought an immediate meeting with the president. The proposed anti-Geneva Convention declaration, he warned, "will reverse over a century of U.S. policy and practice" and have "a high cost in terms of negative international reaction."
Powell won a partial victory: On Feb. 7, 2002, the White House announced that the United States would indeed apply the Geneva Conventions to the Afghan war -- but that Taliban and Qaeda detainees would still not be afforded prisoner-of-war status. The White House's halfway retreat was, in the eyes of State Department lawyers, a "hollow" victory for Powell that did not fundamentally change the administration's position. It also set the stage for the new interrogation procedures ungoverned by international law.
With the legal groundwork laid, Bush signed a secret order granting new powers to the CIA. According to knowledgeable sources, the president's directive authorized the CIA to set up a series of secret detention facilities outside the United States, and to question those held in them with unprecedented harshness. Washington then negotiated novel "status of forces agreements" with foreign governments for the secret sites. These agreements gave immunity not merely to U.S. government personnel but also to private contractors. (Asked about the directive last week, a senior administration official said, "We cannot comment on purported intelligence activities.")
The administration also began "rendering" -- or delivering terror suspects to foreign governments for interrogation. At a classified briefing for senators not long after 9/11, CIA Director George Tenet was asked whether Washington was going to get governments known for their brutality to turn over Qaeda suspects to the United States. Congressional sources tell Newsweek that Tenet suggested it might be better sometimes for such suspects to remain in the hands of foreign authorities, who might be able to use more aggressive interrogation methods. By 2004, the United States was running a covert charter airline moving CIA prisoners from one secret facility to another, sources say. It was judged impolitic (and too traceable) to use the U.S. Air Force.
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