News - What Geneva Convention?

White House counsel greased the tracks toward Abu Ghraib

In a recent public essay, Alberto Gonzales, counselor to President Bush, emphasized that as an occupying power in Iraq, "the United States is bound to observe the rules of war in the Geneva Conventions." Indeed, the president's lawyer seems almost indignant that anyone would even question the administration's commitment to the Geneva Conventions regarding the treatment of Iraqi prisoners of war: There "has never been any suggestion by our government that the conventions do not apply in that conflict" (emphasis added). "Harrumph," he might have added, "how dare anyone question our commitment to the proper treatment of detainees under our control?"

Despite the eloquent words of the president's lawyer in defense of the rule of law, however, a memorandum he wrote to his boss more than two years ago clearly sowed the seeds that have blossomed into the full-scale scandal now known as Abu Ghraib-gate. The slippery slope seems to have started in that memo.

The memorandum in question was sent to President Bush Jan. 25, 2002, and is a spirited defense of an earlier opinion given to the president, concluding that the terms of the Third Geneva Convention do not apply to detainees of al-Qaeda or the Taliban. (The 1949 Third Geneva Convention, signed by the United States and many other nations, including Iraq and Afghanistan, governs the status of prisoners of war.)

Several points in the Gonzales memorandum are of interest in understanding how we reached the point at which we find ourselves in Iraq mid-2004. First, however, it should be noted that Secretary of State Colin Powell disagreed with the finding by the Justice Department that the Geneva Convention did not apply to Taliban and al-Qaeda detainees. Perhaps Powell foresaw the dangers now manifesting in occupied Iraq, and in our relations with other nations objecting to our treatment of detainees. Regardless, his voice clearly did not carry the day at 1600 Pennsylvania Ave.

Gonzales concludes that the Geneva Conventions should not apply to the Taliban because Afghanistan is a "failed state because ... it was in widespread material breach of its international obligations." Now there's an interesting criteria for removing a country from having its detainees in U.S. custody enjoy the protection of the Geneva Conventions — "failure to meet its international obligations." According to this criterion, the majority of Third World nations would be classified as "not covered" because most have failed to meet international obligations!

Yet more nations would be denied Geneva Convention coverage by the president, according to the advice from his lawyer, because, like the Taliban, they "did not exercise full control over the territory and people." Limiting applicability of the Conventions only to those countries "exercising full control" over their territory and people would rule out countries such as Colombia, which, because of armed guerrilla insurgency, does not fully control all its territory.

The Gonzales memorandum is long on its one conclusion — that the Geneva Conventions do not apply to the Taliban or al-Qaeda detainees — and short on specifics. This is perhaps understandable, given that its most repetitive premise is that the conclusion is necessary to afford the president "options" in the future. Well ... yes. As a matter of fact, if the president concludes that the Taliban and al-Qaeda detainees can be treated without regard to the standard and near universally accepted conditions set forth in the Geneva protocols, then the president will retain "options for the future." In other words, since he has determined the conventions don't apply now, he makes it easier to argue they won't apply in the future. Hard to argue with that logic.

The author also expresses a fear that if the detainees were to be considered POWs under the Geneva Conventions and yet treated as they apparently have been, then U.S. officials could be prosecuted under the 1996 War Crimes Act. Well now, there's a great reason to conclude detainees under our control are not to be treated as POWs — if they were so considered, those in positions of control could be prosecuted under a U.S. law for war crimes. Mr. Gonzales even muses that the president should anticipate that there may be federal prosecutors or independent counsels who might not tow the party line, and that it's therefore better at this early stage (in 2002) to establish a defense by simply concluding the detainees are not entitled to protected treatment.

Perhaps the most striking aspect of the White House counsel's arguments is that the position he recommends — which was adopted by the administration despite Powell's objections — "could undermine U.S. military culture." That seems to be exactly what has happened in Iraq. And that, my friends, is where the slippery slope led.

Former U.S. Rep. Bob Barr served in Congress as a Republican, 1995-2003. His column appears every other week in Creative Loafing.

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