Saturday, January 26, 2002

Powell Urges POW Status

The Washington Times reports:

Secretary of State Colin Powell has asked President Bush to reverse the
president's position on al Qaeda and Taliban detainees and declare them
prisoners of war under the Geneva Convention.

A four-page internal White House memorandum obtained yesterday by The
Washington Times shows that Mr. Powell made the request and that the
president's National Security Council plans to meet on the matter Monday

"The secretary of state has requested that you reconsider that decision,"
White House Counsel Alberto Gonzales wrote yesterday in a memo to Mr.
Bush. "Specifically, he has asked that you conclude that GPW [Geneva Convention
II on the Treatment of Prisoners of War] 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."
The memo provides a rare glimpse of a major dispute inside the Bush White
House on what has become one of the most contentious issues in the war in
Afghanistan. Mr. Powell wants the president to reverse his position. But Mr.
Gonzales and most, if not all, members of the president's national security
team are urging him not to retreat, according to the memo.

Mr. Bush decided Jan. 18 that hundreds of Taliban and members of Osama bin
Laden's al Qaeda army are detainees, not prisoners of war, and thus not subject
to rights in the Geneva Convention. Human rights groups and some European
politicians have protested the decision and have been especially critical of
the living conditions for 158 detainees at the U.S. Naval Base in Guantanamo
Bay, Cuba.

Administration sources last night expressed anger at Mr. Powell, whom they
accused of bowing to pressure from the political left. They said that if Mr.
Bush heeds his secretary of state's advice, the U.S. will have to provide
detained terrorists with all sorts of amenities, including exercise rooms and

The four-page Gonzales memo to Mr. Bush comes with a signed cover sheet
from Condoleezza Rice, the president's national security adviser. The cover
page asks Vice President Richard Cheney; Mr. Powell; Defense Secretary Donald
H. Rumsfeld; Attorney General John Ashcroft; CIA Director George Tenet; and
Gen. Richard Myers, Joint Chiefs Chairman, to read Mr. Gonzales' memo and have
responses to her by today at 11 a.m.

"After receiving your comments, we will prepare a final memorandum for
presentation to the president Saturday afternoon," Miss Rice writes.

In his memo to the president, Mr. Gonzales lays out his and the Justice
Department's reasons for recommending that Taliban and al Qaeda are not Geneva
Convention prisoners of war. The White House counsel then lists what appear to
be the State Department's arguments for reversal.

Mr. Gonzales then writes, "On balance, I believe that the arguments for
reconsideration and reversal are unpersuasive."

The memo shows that Mr. Powell is not only running up against opposition
at the White house, but also at the Justice Department.

Mr. Gonzales writes that the department's Office of Legal Counsel "has
opined that, as a matter of international law and domestic law, GPW does not
apply to the conflict with Al Qaeda. OLC has further opined that you have the
authority to determine that GPW does not apply to the Taliban. As I discussed
with you, the grounds for such a determination may include ... a determination
that the Taliban and its forces were, in fact, not a government, but a
militant, terrorist-like group."

The White House counsel adds, "OLC's interpretation of this legal issue is
definitive. ... Nevertheless, you should be aware that the legal adviser to the
secretary of state has expressed a different view."

In addition to Mr. Gonzales and Justice, Mr. Powell is likely to run into
opposition from Mr. Rumsfeld. The defense secretary has vigorously defended the
treatment of captives in Guantanamo and the decision not to place them under
protection of the Geneva Convention. Mr. Rumsfeld often points out that the
detainees are willing to commit suicide in order to kill Americans.

"It should be noted that your policy of providing humane treatment to
enemy detainees gives us the credibility to insist on like treatment for our
soldiers," Mr. Gonzales wrote. "Moreover, even if GPW is not applicable we can
still bring war crimes charges against anyone who mistreats U.S. personnel.

Finally, I note that our adversaries in several recent conflicts have not been
deterred by GPW in their mistreatment of captured U.S. personnel, and
terrorists will not follow GPW rules in any event."

Mr. Gonzales also argues that invoking the Geneva Convention would make it
easier for adversaries to try to charge American servicemen with war crimes.

Noting that the president has called the war on terrorism "a new kind of
war," Mr. Gonzales wrote, "In my judgment, this new paradigm renders obsolete
Geneva's strict limitations on questioning of enemy prisoners and renders
quaint some of its provisions requiring that captured enemy be afforded such
things as commissary privileges, script (i.e., advances of monthly pay),
athletic uniforms, and scientific instruments."

Placing the detainees under the Geneva Convention would give them legal
protections and new creature comforts. The United States would be restricted
from conducting open-ended interrogations, for example, some of which have
given the FBI new insights into how the al Qaeda terror network operates.

Yesterday at Guantanamo, Republican Sen. James M. Inhofe of Oklahoma said
many of the detainees held there are likely to be returned to their homelands
after investigators complete interrogations that began Wednesday.

Officials would not say how long the interrogations of the al Qaeda and
Taliban fighters might last. It also was not clear whether the United States
would demand that detainees be returned on the condition they be put on trial
at home.

"I believe after the interrogation process there's going to be a
distinction made as to whether, No. 1, these people should be sent to their
country and, No. 2, be subjected to a military tribunal [at home] and, No. 3,
whether there should be U.S. military justice or, in some rare occasions, the
same as in what John Walker [Lindh] is receiving," Mr. Inhofe told the
Associated Press.

Lindh, a U.S. citizen, will be tried in federal court on charges of
helping the Taliban and al Qaeda target American civilians.

Mr. Inhofe was part of a delegation of eight representatives and three
senators who visited the detention center yesterday. U.S. lawmakers have said
they consider the detained fighters a danger to society who would kill again if
set free.

Meanwhile in Afghanistan, U.S. Special Forces troops uncovered a large
cache of Taliban weapons at a compound about 40 miles north of Kandahar after a
battle with holdout Taliban fighters, the Pentagon said yesterday.

Military interrogators are questioning 27 Taliban fighters captured in
Thursday's raid in Hazar Kadamon. Defense officials said at least 15 Taliban
were killed in the operation and that one U.S. Special Forces soldier was
wounded on the ankle.

The weapons were stored at several locations in the compound, which was
located in a remote part of Afghanistan, he said. The compound had three sets
of buildings, one of which had a fence around it.

Rear Adm. John Stufflebeem, deputy director of operations for the Joint
Staff, said the total number of detainees from Afghanistan is now 460 — 302 in
Afghanistan and 158 in Cuba.