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Double Standards?
A Justice Department memo proposes that the United States hold others accountable for international laws on detainees—but that Washington did not have to follow them itself
By
Michael Isikoff for Newsweek.

In a crucial memo written four months after the September 11, 2001, terror attacks, Justice Department lawyers advised that President George W. Bush and the U.S. military did not have to comply with any international laws in the handling of detainees in the war on terrorism. It was that conclusion, say some critics, that laid the groundwork for aggressive interrogation techniques that led to the abuses at the Abu Ghraib prison in Iraq.

The draft memo, which drew sharp protest from the State Department, argued that the Geneva Conventions on the treatment of prisoners of war did not apply to any Taliban or Al Qaeda fighters being flown to the detention center at Guantanamo Bay, Cuba, because Afghanistan was a “failed state” whose militia did not have any status under international treaties.

But the Jan. 9, 2002 memo, written by Justice lawyers John Yoo and Robert J. Delahunty, went far beyond that conclusion, explicitly arguing that no international laws—including the normally observed laws of war—applied to the United States at all because they did not have any status under federal law.

Here is the complete article in case the link goes bad:

http://www.msnbc.msn.com/id/5032094/site/newsweek/

WEB EXCLUSIVE
By Michael Isikoff
Investigative Correspondent
Newsweek
Updated: 1:42 p.m. ET May 22, 2004

May 21 - In a crucial memo written four months after the September 11, 2001, terror attacks, Justice Department lawyers advised that President George W. Bush and the U.S. military did not have to comply with any international laws in the handling of detainees in the war on terrorism. It was that conclusion, say some critics, that laid the groundwork for aggressive interrogation techniques that led to the abuses at the Abu Ghraib prison in Iraq.

The draft memo, which drew sharp protest from the State Department, argued that the Geneva Conventions on the treatment of prisoners of war did not apply to any Taliban or Al Qaeda fighters being flown to the detention center at Guantanamo Bay, Cuba, because Afghanistan was a “failed state” whose militia did not have any status under international treaties.

But the Jan. 9, 2002 memo, written by Justice lawyers John Yoo and Robert J. Delahunty, went far beyond that conclusion, explicitly arguing that no international laws—including the normally observed laws of war—applied to the United States at all because they did not have any status under federal law.

“As a result, any customary international law of armed conflict in no way binds, as a legal matter, the President or the U.S. Armed Forces concerning the detention or trial of members of Al Qaeda and the Taliban,” according to a copy of the memo obtained by NEWSWEEK. A copy of the memo is being posted today on NEWSWEEK’s Web site.

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At the same time, and even more striking, according to critics, the memo explicitly proposed a de facto double standard in the war on terror in which the United States would hold others accountable for international laws it said it was not itself obligated to follow.

After concluding that the laws of war did not apply to the conduct of the U.S. military, the memo argued that President Bush could still put Al Qaeda and Taliban fighters on trial as war criminals for violating those same laws. While acknowledging that this may seem “at first glance, counter-intuitive,” the memo states this is a product of the president’s constitutional authority “to prosecute the war effectively.”

The two lawyers who drafted the memo, entitled “Application of Treaties and Laws to Al Qaeda and Taliban Detainees,” were key members of the Justice Department’s Office of Legal Counsel, a unit that provides legal advice to the White House and other executive-branch agencies. The lead author, John Yoo, a conservative law professor and expert on international law who was at the time deputy assistant attorney general in the office, also crafted a series of related memos—including one putting a highly restrictive interpretation on an international torture convention—that became the legal framework for many of the Bush administration’s post-9/11 policies. Yoo also coauthored another OLC memo entitled “Possible Habeas Jurisdiction Over Aliens Held in Guantanamo Bay, Cuba,” that concluded that U.S. courts could not review the treatment of prisoners at the base.

Critics say the memos’ disregard for the United States’ treaty obligations and international law paved the way for the Pentagon to use increasingly aggressive interrogation techniques at Guantanamo Bay—including sleep deprivation, use of forced stress positions and environmental manipulation—that eventually were applied to detainees at the Abu Ghraib prison in Iraq. The customary laws of war, as articulated in multiple international treaties and conventions dating back centuries, also prohibit a wide range of conduct such as attacks on civilians or the murder of captured prisoners.

Kenneth Roth, the executive director of Human Rights Watch, who has examined the memo, described it as a “maliciously ideological or deceptive” document that simply ignored U.S. obligations under multiple international agreements. “You can’t pick or choose what laws you’re going to follow,” said Roth. “These political lawyers set the nation on a course that permitted the abusive interrogation techniques” that have been recently disclosed.

When you read the memo, “the first thing that comes to mind is that this is not a lofty statement of policy on behalf of the United States,” said Scott Horton, president of the International League for Human Rights, in an interview scheduled to be aired tonight on PBS’s “Now with Bill Moyers” show. “You get the impression very quickly that it is some very clever criminal defense lawyers trying to figure out how to weave and bob around the law and avoid its applications.”

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At the time it was written, the memo also prompted a strong rebuttal from the State Department’s Legal Advisor’s office headed by William Howard Taft IV. In its own Jan. 11, 2002, response to the Justice draft, Taft’s office warned that any presidential actions that violated international law would “constitute a breach of an international legal obligation of the United States” and “subject the United States to adverse international consequences in political and legal fora and potentially in the domestic courts of foreign countries.”

“The United States has long accepted that customary international law imposes binding obligations as a matter of international law,” reads the State Department memo, which was also obtained by NEWSWEEK. “In domestic as well as international fora, we often invoke customary international law in articulating the rights and obligations of States, including the United States. We frequently appeal to customary international law.” The memo then cites numerous examples, ranging from the U.S. Army Field Manual on the Law of Land Warfare (“The unwritten or customary law of war is binding upon all nations,” it reads) to U.S. positions in international issues such as the Law of the Sea.

But the memo also singled out the potential problems the Justice Department position would have for the military tribunals that President Bush had recently authorized to try Al Qaeda members and suspected terrorists. Noting that White House counsel Alberto Gonzales had publicly declared that the persons tried in such commissions would be charged with “offenses against the international laws of war,” the State Department argued that the Justice position would undercut the basis for the trials.

“We are concerned that arguments by the United States to the effect that customary international law is not binding will be used by defendants before military commissions (or in proceedings in federal court) to argue that the commissions cannot properly try them for crimes under international law,” the State memo reads. “Although we can imagine distinctions that might be offered, our attempts to gain convictions before military commissions may be undermined by arguments which call into question the very corpus of law under which offenses are prosecuted.”

The Yoo-Delahunty memo was addressed to William J. Hanes, then general counsel to the Defense Department. But administration officials say it was the primary basis for a Jan. 25, 2002, memo by White House counsel Gonzales—which has also been posted on NEWSWEEK’s Web site—that urged the president to stick to his decision not to apply prisoner-of-war status under the Geneva Conventions to captured Al Qaeda or Taliban fighters. The president’s decision not to apply such status to the detainees was announced the following month, but the White House never publicly referred to the Justice conclusion that no international laws—including the usual laws of war—applied to the conflict.

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One international legal scholar, Peter Spiro of Hofstra University, said that the conclusions in the memo related to international law “may be defensible” because most international laws are not binding in U.S. courts. But Spiro said that “technical” and “legalistic” argument does not change the effect that the United States still has obligations in international courts and under international treaties. “The United States is still bound by customary international law,” he said.

One former official involved in formulating Bush administration policy on the detainees acknowledged that there was a double standard built into the Justice Department position, which the official said was embraced, if not publicly endorsed, by the White House counsel’s office. The essence of the argument was, the official said, “it applies to them, but it doesn’t apply to us.”

But the official said this was an eminently defensible position because there were many categories of international law, some of which clearly could not be interpreted to be binding on the president. In any case, the general administration position of not applying any international standards to the treatment of detainees was driven by the paramount needs of preventing another terrorist attack. “The Department of Justice, the Department of Defense and the CIA were all in alignment that we had to have the flexibility to handle the detainees—and yes, interrogate them—in ways that would be effective,” the official said.