Behind-the-scenes clash led Bush to reverse himself on applying Geneva Conventions
New York Times
February 22, 2002
By Thom Shanker and Katharine Q. Seelye
WASHINGTON, Feb. 21 - President Bush's decision this month to reverse himself and apply the Geneva Conventions to the Afghan war came after the Pentagon and State Department lined up against the administration's top lawyers, senior administration officials now say.
Senior officials also disclosed for the first time that NATO allies were so concerned with Mr. Bush's initial decision to reject the conventions that Britain and France warned they might not turn over Taliban and Al Qaeda fighters captured by their troops in Afghanistan unless Mr. Bush pledged to honor the treaties.
"What we heard from the French and the British was that if we didn't determine that the Geneva Conventions applied, then they would find it difficult to transfer to our custody people that they might take into custody that we'd want," a senior administration official said. These complaints were voiced informally, the official said.
Further pressure on Mr. Bush to shift his stance came when the Defense Department agreed with warnings from the State Department that ignoring the treaties could put American troops at risk if they were captured. The State Department and the Pentagon have not always seen eye to eye on how to carry out antiterror policy; in other debates since Sept. 11, defense officials have sometimes adopted a harder line and more hawkish stance than State.
Mr. Bush's first decision to reject the conventions, reached in secret on Jan. 18 and never announced, was based on advice from the Justice Department and from the White House counsel, Alberto Gonzales.
Their views reflected the administration's basic reluctance to be bound automatically by international treaties. In this particular case, the president feared that giving adversaries like Taliban and Al Qaeda the status - and protections - of formal enemies would limit his flexibility in the long-term, global campaign against terrorism, officials said.
By denying captives full Geneva protections, the administration said, it could more thoroughly interrogate them to uncover future terrorist plots, bring a wide array of charges against them, try them before military tribunals and administer the death penalty.
The treatment of detainees complicated relations with European allies, many of whom oppose the death penalty. This was particularly acute with Britain and France, which have a handful of citizens among the detainees, officials said.
Secretary of State Colin L. Powell was particularly influential in getting the president to change his mind, officials said.
On Feb. 7, 20 days after his original decision, the president dispatched the White House press secretary to announce at a hastily arranged news conference that the Geneva Conventions would apply to the conflict and to the Taliban detainees, but not to Al Qaeda - and that neither Taliban nor Al Qaeda would be granted prisoner-of-war status.
Several international legal scholars were outraged at what they saw as a picking and choosing of which parts of the treaty to apply. The decision drew a rare statement of disapproval from the International Committee of the Red Cross, which said its views were "divergent" with those of the United States.
A sign of the legal complexity of the matter, and the extreme delicacy of America's position with its allies, is that the White House still has not issued a legal analysis of its precedent-setting decision, nor explained its intent.
Even Defense Secretary Donald H. Rumsfeld, the administration's chief spokesman for the war effort, revealed an uncharacteristic public frustration at the handling of the issue.
At a Pentagon news conference, he blasted critics of America's treatment of the prisoners as "isolated pockets of international hyperventilation."
But when asked to explain the legal underpinnings of the new policy, he distanced himself from the whole process. "I do not have the power to deliver White House lawyers or the president of the Unit ed States, who made the decision," he said.
Mr. Rumsfeld had always emphasized the need to gather as much information from the captives as possible, and said flatly that Al Qaeda members deserved no protections as prisoners of war. He tended to deflect queries about the Taliban's exact status as Afghanistan's official army.
Even so, administration officials confirmed, Mr. Rumsfeld eventually agreed with Secretary Powell in asking the president to review the question of whether the Geneva Conventions applied to these ca ptives. Senior Pentagon officials also said Mr. Rumsfeld came to reflect the concerns of the Joint Chiefs of Staff, who rely on the Geneva Conventions to protect captured Americans, and was displeased by what he saw as the clumsy public release of the administration's decisions.
"We are the country that has most to gain from the universal application of these principles," a senior Rumsfeld adviser noted.
International legal scholars point out that many of the administration's goals in denying prisoner-of-war status to the detainees could be accomplished even under the Geneva Conventions. Interrogations are not prohibited. And while prisoners not charged with war crimes are to be released at the end of a conflict, the administration could argue that the broader war on terror simply opened with a front in Afghanistan, and was still continuing elsewhere in the world and that these fighters cannot be released.
Although the Bush administration came into office expressing deep skepticism about a number of international agreements, arguing that decades-old treaties restricted the pursuit of American interests in a rapidly changing world, few anticipated that President Bush would actually reject the Geneva Conventions.
The four Geneva Conventions signed in 1949 were intended to avoid the mass abuses of civilians and of military prisoners that took place during World War II. Although they have periodically been ign ored by some nations, they remain the world's most revered accords, garnering signatures of 189 countries, a number exceeded by only one other treaty (on the protection of children).
Interviews with senior officials throughout the administration revealed that Mr. Bush's goal was to avoid decisions that might restrict America's conduct in the next front in battling a nebulous enemy in scores of nations into the indefinite future.
"We were attacked by an unseen, treacherous, criminal enterprise," said a senior Defense Department official. "We needed a multifaceted approach to a cancerous problem." The formula in the Geneva Conventions, he said, "didn't apply neatly."
As President Bush's top advisers mulled the options, they realized they were breaking new ground. " We wanted to be very careful, and not as a matter of rote apply the old rules," this official said
With the vast majority of Americans strongly backing the war effort, and with little sympathy for prisoners linked to those who planned and carried out the Sept. 11 attacks in New York and the Pentagon, the administration was confident in leaving the prisoners in legal limbo while it interrogated them for information to prevent future attacks. Moreover, officials insisted, they were treating the prisoners in Cuba humanely, "consistent" with the Geneva Conventions.
"Although we were clearly in a state of armed conflict, Al Qaeda is not a party to Geneva, and Geneva applies only to high contracting parties, and we're clearly in a conflict with them all around the world, not just in Afghanistan," a senior administration official said.