Known and Unknown - Donald Rumsfeld [303]
Those of us in the Defense Department did not address Justice’s legal position, but we had a different view as a matter of policy, perhaps none more strenuously than the Chairman of the Joint Chiefs of Staff. One day in late January 2002, General Myers strode purposefully into my office with a concerned look on his face. Several days before, White House legal memos leaked to the press had given the impression that President Bush might be considering not applying the Geneva Conventions at all in Afghanistan, based on the Department of Justice’s legal opinion.27 Myers felt strongly that it would be a mistake not to apply the Conventions to the Taliban. We couldn’t risk the perception that we were discarding long-established rules of international law and our treaty obligations.
I concluded that Myers was correct. Knowing that administration lawyers were weighing in, I wanted to make sure President Bush heard the Chairman’s and the Defense Department’s views.28 I asked Rice to set up an NSC meeting on the subject so that we could make the Department’s case.
At the NSC meeting on February 4, 2002, Myers and Doug Feith presented our position, which was based on the language and purposes of the Geneva Conventions. We contended that the U.S. government should not use a legal argument to avoid applying the Geneva Conventions to the conflict in Afghanistan. The memo we brought to the meeting set out our position:
A “pro-Convention” position reinforces [the US Government]’s key themes in the war on terrorism.
The essence of the Convention is the distinction between soldiers and civilians (i.e., between combatants and non-combatants).
Terrorists are reprehensible precisely because they negate that distinction by purposefully targeting civilians.
The Convention aims to protect civilians by requiring soldiers to wear uniforms and otherwise distinguish themselves from civilians.
The Convention creates an incentive system for good behavior. The key incentive is that soldiers who play by the rules get POW status if they [are] captured.
The US can apply the Convention to the Taliban (and al-Qaida) detainees as a matter of policy without having to give them POW status because none of the detainees remaining in US hands played by the rules.29
The DoD memo concluded by summing up what we thought the U.S. position should be:
Humane treatment for all detainees.
US is applying the Convention. All detainees are getting the treatment they are (or would be) entitled to under the Convention.
US supports the Convention and promotes universal respect for it.
The Convention does not squarely address circumstances that we are confronting in this new global war against terrorism, but while we work through the legal questions, we are upholding the principle of universal applicability of the Convention.30
Though the Justice Department offered its well-considered legal view, we noted that the Taliban was effectively the government of a country that was a party to Geneva. Our position was that it was “[h]ighly dangerous if countries make application of [the] Convention hinge on subjective or moral judgments as to the quality or decency of the enemy’s government.”31 Powell’s position, as outlined in his January 25 memorandum, was in line with ours.32 The discussion was the sort of thing that I thought would have done the drafters of the Geneva Conventions proud. Justice Department officials were doing their jobs: defining the President’s flexibility within the law. And the policy makers in the Department of Defense were doing theirs: making clear that while it is mandatory to stay within the law, not everything that is lawful is necessarily the best policy.
President Bush was apparently persuaded by Myers and Feith’s arguments, and on February 7, he set forth his conclusions in a memo.33 While he didn’t challenge the Justice Department’s legal reasoning, he seemed to feel that it risked putting