Memos Reveal War Crimes Warnings

"Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

The memo--and strong dissents by Secretary of State Colin Powell and his chief legal advisor, William Howard Taft IV--are among hundreds of pages of internal administration documents on the Geneva Convention and related issues that have been obtained by NEWSWEEK and are reported for the first time in this week's magazine. Newsweek made some of them available online today.

The memos provide fresh insights into a fierce internal administration debate over whether the United States should conform to international treaty obligations in pursuing the war on terror. Administration critics have charged that key legal decisions made in the months after September 11, 2001 including the White House's February 2002 declaration not to grant any Al Qaeda and Taliban fighters prisoners of war status under the Geneva Convention, laid the groundwork for the interrogation abuses that have recently been revealed in the Abu Ghraib prison in Iraq.

As reported in this week's magazine edition, the Gonzales memo urged Bush to declare all aspects of the war in Afghanistan--including the detention of both Al Qaeda and Taliban fighters--exempt from the strictures of the Geneva Convention. In the memo, Gonzales described the war against terorrism as a "new kind of war" and then added: "The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians."

But while top White House officials publicly talked about trying Al Qaeda leaders for war crimes, the internal memos show that administration lawyers were privately concerned that they could tried for war crimes themselves based on actions the administration were taking, and might have to take in the future, to combat the terrorist threat.

The issue first arises in a January 9, 2002, draft memorandum written by the Justice Department's Office of Legal Counsel (OLC) concluding that "neither the War Crimes Act nor the Geneva Conventions" would apply to the detention conditions of Al Qaeda or Taliban prisoners at Guantanamo BayCuba. The memo includes a lengthy discussion of the War Crimes Act, which it concludes has no binding effect on the president because it would interfere with his Commander in Chief powers to determine "how best to deploy troops in the field." (The memo, by Justice lawyers John Yoo and Robert Delahunty, also concludes--in response to a question by the Pentagon--that U.S. soldiers could not be tried for violations of the laws of war in Afghanistan because such international laws have "no binding legal effect on either the President or the military.")