March 28

Feb. 2, 2002: Executive Decree Denies Al Qaeda detainees Geneva POW Protection

 Al Qaeda were labelled “unlawful enemy combatants.” President Bush effectively denied prisoners in the War on Terror the legal protections and minimum standards for humane treatment under Article 3 of the Geneva Conventions. He did so while stating that, as a matter of policy, the U.S. Armed Forces shall treat detainees “humanely,” consistent with the Geneva Conventions “to the extent appropriate and consistent with military necessity.”

His decision was preceded by several dubious memoranda authored by John Yoo Deputy Assistant Attorney General in the DoJ Office of Legal Counsel and Attorney General Alberto Gonzalez; DoD General Counsel William Haynes, and Secretary Donald Rumsfeld. (Law of War Torture Memo Analysis)

On Jan. 19, 2002 Rumsfeld sent a memo to  the Joint Chiefs of Staff declaring: “The United States determined that AlQaida and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.” (National Archive Torture Archive)  [In 2006, the U.S. Supreme Court overruled these decrees.]

Philip Carter, a former U.S. Army officer served as an embedded adviser in Iraq (2005-2006); a lawyer and founding member of Iraq and Afghanistan Veterans of America, forcefully criticized the suspension of the Geneva Conventions prohibition against torture:

“There’s a reason why career military officers are among those who have expressed the greatest revulsion over the Bush administration’s cavalier treatment of the laws of war. These officers aren’t soft-minded idealists who believe in the rule of law for its own sake. Quite the contrary; three generations of military officers have grown up respecting the Geneva Conventions for extremely practical reasons. When the administration publicly declared in February 2002 that those conventions would not apply to the detainees at Guantanamo Bay, many of America’s soldiers worried that this policy would be reciprocated by our nation’s enemies, should Americans themselves ever be captured in a future conflict.”

“It is worth noting that Secretary of State Colin Powell, who saw combat in Vietnam and helped run the first Gulf War, strongly opposed this move, as did his chief legal adviser, William Howard Taft IV. The principle of reciprocity has long served as one of the chief mechanisms for compliance with the laws of war. The Bush administration’s approach has put future generations of U.S. military personnel in grave risk of mistreatment.”  (Philip Carter.  The Road to Abu Ghraib, WashingtonMonthly, Nov. 2004)


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