Torture is legal because Al Qaeda is not a nation-state?

[The Straight Story]

The Justice Department's Office of Legal Counsel--where I worked at the time--determined that the Geneva Conventions legally do not apply to the war on terrorism because al Qaeda is not a nation-state and has not signed the treaties. Al Qaeda members also do not qualify as legal combatants because they hide among peaceful populations and launch surprise attacks on civilians--violating the fundamental principle that war is waged only against combatants. Consistent American policy since at least the Reagan administration has denied terrorists the legal privileges reserved for regular armed forces.

The Taliban raised different questions because Afghanistan is a party to the Geneva Conventions, and the Taliban arguably operated as its de facto government. But the Justice Department found that the president had reasonable grounds to deny Taliban members POW status because they did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war. The Taliban flagrantly violated those rules, at times deliberately using civilians as human shields.

According to Gonzales' memo, the State Department argued that denying POW status to the Taliban would damage U.S. standing in the world and could undermine the standards of treatment for captured American soldiers. Gonzales also passed on the department's worry that denying POW status ''could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.''

The press has consistently misrepresented Gonzales' views and latched onto a sexy sound bite used out of context. When Gonzales said in the memo that this new war made some provisions of the Geneva Conventions ''quaint,'' he referred to the requirement that POWs be given commissary privileges, monthly pay, athletic uniforms and scientific instruments. Many stories cut the quotation short, making it seem as if he had deemed the conventions themselves ''quaint.''

Full report here:



www.dean.usma.edu/law/lawandterr/Behind%20the%20Torture%20Memos.doc