2002 Justice Memos: POW Laws Don’t Apply

WASHINGTON – Memos written by top Justice Department lawyers for the Pentagon in early 2002 laid out legal reasons why the United States did not have to comply with international treaties regarding the treatment of prisoners.

One key draft memo, dated Jan. 9, 2002, states that the normal laws of armed conflict, including the Geneva Conventions, do not apply to al-Qaida and Taliban militia prisoners. The memo calls these groups “non-state actors” who should not be considered a party to international treaties governing war conduct.

While the memos were written before the war in Iraq, they authorized methods of interrogation for the Afghanistan conflict that some human rights organizations have said laid the legal groundwork for the violations seen months later at the Abu Ghraib prison in Iraq and elsewhere.

Justice Department officials had no comment on the memos Friday.

The memo and others on the subject were drafted in part by John Yoo, then a senior lawyer in the Justice Department’s Office of Legal Counsel and now a law professor at the University of California at Berkeley. The memos were the subject Friday of a story in The New York Times and were subsequently posted on Newsweek’s Internet site.

The Jan. 9 memo, co-written by Yoo and Justice lawyer Robert J. Delahunty, was addressed to Defense Department general counsel William J. Haynes. It lays out several legal reasons why President Bush could avoid normal prisoner legal protections in Afghanistan, including an argument that it was a “failed state” or that the Taliban and al-Qaida were intertwined terror groups who should not be treated as legitimate soldiers.

“Al-Qaida is merely a violent political movement or organization and not a nation-state,” the memo says.

After that memo was written, White House General Counsel Alberto Gonzalez advised Bush in a memo dated Jan. 25, 2002, that al-Qaida and the Taliban should be considered outside the coverage of the Geneva Conventions.

The Jan. 9 Justice Department memo provoked a strong reaction from the State Department, according to Newsweek. In its Jan. 11 response, State Department lawyers warned that the United States could be considered in breach of international law if Bush accepted the Justice Department position and might later find it difficult to prosecute suspected war criminals.