Legal Justification for Torture by White House Counsel

Alberto R. Gonzales | US Department of Justice | January 25, 2002

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This memo was prepared by the legal counsel to the president, on behalf of the Bush Administration in the beginning of 2002. It articulated the belief that in any conflict part of the “war on terrorism,” the participants would not be granted prisoner of war (POW) status under the Geneva Conventions. Gonzales outlined the ramifications of this judgment, including the ability to use interrogation techniques outside “Geneva’s strict limitations on questioning” and prevents American personnel from being charged under the War Crimes Act. The memorandum was vehemently opposed by Secretary of State Colin Powell, who had asked the president to reconsider his determination that the Geneva Convention did not apply, and he supplied his own memorandum on the subject. The president did not reconsider, and it has been speculated that it is this legal framework that engendered the human rights abuses in the Abu Ghraib prision in Iraq. [The memo is temporarily unavailable; you can download a copy off-site.] View file [0.0kb]

“Purpose

“On January 18, I advised you that the Department of Justice had issued a formal legal opinion concluding that the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply to the conflict with al Qaeda. I also advised you that DOJ’s opinion concludes that there are reasonable grounds for you to conclude that GPW does not apply with respect to the conflict with the Taliban. I understand that you decided that GPW does not apply and, accordingly, that al Qaeda and Taliban detainees are not prisoners of war under the GPW.

“The Secretary of State has requested that you reconsider this decision. Specifically, he has asked that you conclude that GPW does apply to both al Qaeda and the Taliban. I understand, however, that he would agree that al Qaeda and Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.

“This memorandum outlines the ramifications of your decision and the Secretary’s request for reconsideration.”

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