PLEASE LET US KNOW IF WE CAN BE OF FURTHER ASSISTANCE
By Hank Berger

** Boalt graduates protest at commencement; Prof. Yoo decides not to attend **

United for Peace of Pierce County
May 26, 2004

"Please let us know if we can be of further assistance."

So reads the concluding sentence of an extraordinary memo unearthed last week, leading to a commencement protest by graduates of U.C. Berkeley's Boalt School of Law this weekend.[1,2]

"Further assistance"? One shudders to think how far the authors of this memo would go.

The document in question is a 42-page memorandum dated Jan. 9, 2002, written by John C. Yoo, then deputy assistant attorney general and now professor of law at Boalt, and Robert J. Delahunty, special counsel. It argues that that there are legally no restraints whatsoever upon the treatment of prisoners who are "members of the al Qaeda organization" or of "the Taliban militia."

Boalt students were shocked that one of their law professors should have co-authored the document. Having read the memo, I can see why. The Yoo-Delahunty memo is an appalling perversion of all that the United States as a nation and our venerable Constitution as a legal document should stand for.

Yoo and Delahunty argue in the memo that the president's "plenary authority" as commander in chief leaves to his sole discretion whether any limits exist as to how some human beings are treated.

Addressed to the general counsel of the Department of Defense, the memo formed one of the legal bases for inhumane practices that are now coming to light in Afghanistan and Guantanamo. As all the world knows, these were later extended to prisons in Iraq.

The Yoo-Delahunty memo was published by Newsweek last week.

Boalt Hall graduates were outraged that a professor of international and constitutional law should make the United States Constitution, whose basic doctrine is a balance of powers, the source of a "plenary power" that distorts and perverts the Constitution's fundamental character, turning it into a license to torture.

Unless Prof. Yoo repudiates the memo, declares his opposition to torture, and encourages the Bush administration to comply with the Geneva Conventions, he should resign from the law school, according to the petition being circulated among Boalt students and alums.

Prof. Yoo has refused to do so. He won't comment on the memo or on his work at the Justice Department, where he served as deputy assistant attorney general from 2001 to 2003, and where his work was an important source for the legal doctrines guiding the "war on terrorism."

Prof. Yoo says he has no desire to reconsider his ideas. "I'm not going to change what I think," the 36-year-old professor told an AP reporter on Friday.

It is perhaps ironic that Yoo is now seeking to shield his view that an American president has the authority to deprive others of all their rights behind his right to academic freedom.

"To the extent that the petition goes beyond expressing views, I worry that it's an unfortunate effort to interfere with academic freedom," he told the Associated Press.[1]

There was nothing academic about Yoo's position at the Department of Justice when he wrote this memo, or another memo dated ten days earlier, arguing that "a federal district court could not properly exercise habeas [corpus] jurisdiction over an alien detained at GBC [Guantanamo Bay, Cuba]." Both documents have been posted on the internet.[3]

Extensive excerpts showing the contorted, Bizarro-world logic of the first memo, entitled "Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees," are presented below.[4]

Should people not be tortured because it is wrong to torture them, or should they only be exempt from torture if they belong to a group that has signed a convention to which our country subscribes? Do we have rights because we are members of a group, or because we are human beings?

The Declaration of Independence is clear on the questions, and so is the Bill of Rights. Prof. John C. Yoo needs to take a refresher course.

1.

BERKELEY LAW STUDENTS DENOUNCE PROFESSOR FOR POW MEMO
By Terence Chea

Associated Press
May 22, 2004

Original source: Associated Press

SAN FRANCISCO -ñ A growing number of law students at the University of California at Berkeley are denouncing a professor who reportedly helped the Bush administration develop the legal framework that led to the abuse of Iraqi prisoners.

A legal memo written by law professor John Yoo "contributed directly to the reprehensible violation of human rights in Iraq and elsewhere," according to a petition being circulated among students and faculty at Berkeley's Boalt School of Law.

As of Saturday morning, about 200 people had signed the petition, which was launched Thursday night.

Protesting students planned to wear red armbands during Boalt's commencement ceremony Saturday afternoon and pass out fliers denouncing Yoo for "aiding and abetting war crimes." Yoo said he didn't plan to attend the graduation.

The Jan. 9, 2002, memo co-written by Yoo, first reported in Newsweek magazine this week, laid out the legal reasons why the United States didn't have to comply with international treaties governing prisoner rights. The memo argued that the normal laws of armed conflict didn't apply to al-Qaeda and Taliban militia prisoners because they didn't belong to a state.

The Bush administration agreed with that position despite protests from the State Department, Newsweek reported. Yoo drafted the memo when he served as deputy assistant attorney general for the U.S. Justice Department's Office of Legal Counsel between 2001 and 2003.

On Monday, students posted fliers around Boalt Hall that showed captives being abused at Baghdad's Abu Ghraib prison, with Yoo's face appearing on a U.S. soldier's body. Interim Dean Robert C. Berring Jr. sent an e-mail to students calling for a civil discussion.

The student petition urges Yoo to repudiate the memo, declare his opposition to torture and encourage the Bush administration to comply with the Geneva Conventions that protect the rights of prisoners of war. Otherwise, he should resign, the petition says.

"We're embarrassed that he's at our institution," said Abby Reyes, a third-year law student who helped organize the petition. "We came to law school in order to uphold the rule of law, not to learn ways to wiggle our way out of compliance with it."

Yoo wouldn't comment on the memo or his legal work at the Justice Department, but he said the students have a right to express their opinions.

"I'm happy to listen to their viewpoints. Beyond that I'm not going to change what I think," Yoo, 36, said during a telephone interview Friday. "To the extent that the petition goes beyond expressing views, I worry that it's an unfortunate effort to interfere with academic freedom."

Yoo, who joined Boalt's faculty in 1993, said he doesn't have any plans to resign. After leaving the Bush administration, he returned this year to the Berkeley law school, where he teaches international and constitutional law.

Dean Berring said the law school had no plans to discipline Yoo and that the professor's actions as a Justice Department attorney won't affect Yoo's employment at the university.

Berring said faculty members have to right to take "extreme positions."

"The image of Berkeley is the very progressive image," Berring said, "but I think you'd find at Berkeley a pretty wide range of opinions. Professor Yoo is certainly not the only conservative on campus or at the law school."

2.

BERKELEY PROFESSOR DENOUNCED FOR POW MEMO
By Terence Chea

Associated Press
May 23, 2004

http://www.commondreams.org/headlines04/0523-10.htm

BERKELEY, Calif. -- Some graduating University of California law students used their commencement Saturday to denounce a professor who helped the Bush administration develop a legal framework that critics say led to the abuse of Iraqi prisoners.

About one-quarter of the 270 graduates of Berkeley's Boalt School of Law donned red armbands over their black robes in a silent protest of a legal memo law professor John Yoo co-wrote when he served in the U.S. Justice Department's Office of Legal Counsel.

Outside the ceremony, they also passed out fliers denouncing Yoo for "aiding and abetting war crimes." Yoo said beforehand he didn't plan to attend the graduation.

"I respect freedom of thought, but I think he should abide by some basic moral standard," said Andrea Ruiz, 35, one of the armband-wearing students. "Respect for human persons is at the core of what the law is about."

The Jan. 9, 2002, memo, first reported by Newsweek magazine Monday, laid out the legal reasons why the United States didn't have to comply with international treaties governing prisoner rights. It argued that the normal laws of armed conflict didn't apply to al-Qaida and Taliban militia prisoners because they didn't belong to a state.

Yoo, who worked for the Justice Department between 2001 and 2003, wouldn't comment on the memo or his government work, but said the students have a right to express their opinions.

"I'm happy to listen to their viewpoints. Beyond that I'm not going to change what I think," Yoo, 36, said during a telephone interview Friday.

A petition signed by nearly 200 law students and alumni since Thursday alleges that Yoo's memo "contributed directly to the reprehensible violation of human rights in Iraq and elsewhere."

"We're embarrassed that he's at our institution," said law student Abby Reyes, who launched the petition. "We came to law school in order to uphold the rule of law, not to learn ways to wiggle our way out of compliance with it."

The student petition urges Yoo to repudiate the memo, declare his opposition to torture and encourage the Bush administration to comply with the Geneva Conventions that protect the rights of prisoners of war. Otherwise, he should resign, the petition says.

Yoo said he had no plans to resign.

"To the extent that the petition goes beyond expressing views, I worry that it's an unfortunate effort to interfere with academic freedom," he said.

Interim Dean Robert C. Berring Jr. said the law school had no plans to discipline Yoo.

"The image of Berkeley is the very progressive image," Berring said, "but I think you'd find at Berkeley a pretty wide range of opinions. Professor Yoo is certainly not the only conservative on campus or at the law school."

During a May 13 appearance on "The NewsHour with Jim Lehrer," Yoo said he thought the pictures of prisoners being abused at the Baghdad prison showed clear violations of the Geneva Conventions.

"So the question is not whether the Geneva Conventions apply or really whether they're violated or not but how we're going to remedy the situation, and the military is undertaking that," he said, adding that violators should be punished and tried.

3.

MEMOS TO WHITE HOUSE ON GENEVA CONVENTION
By John Yoo, Robert J. Delahunty, and Patrick F. Philbin

http://antiwar.com/news/?articleid=2637

Memos from John Yoo (Deputy Assistant Attorney General), Robert J. Delahunty (Special Counsel), and Patrick F. Philbin (Deputy Assistant Attorney General)

Here are the key memos written by Justice Department officials to President Bush and the US military did not have to comply with any international laws in the handling of detainees in the war on terrorism. Newsweek released the documents on May 21. They are in .pdf format:

--Yoo-Delahunty memo:

http://www.antiwar.com/rep/020109_yoomemo_1-10.pdf
http://www.antiwar.com/rep/020109_yoomemo_11-20.pdf
http://www.antiwar.com/rep/020109_yoomemo_21-30.pdf
http://www.antiwar.com/rep/020109_yoomemo_31-42.pdf

--Memo on habeas jurisdiction:

http://www.antiwar.com/rep/011228_philbinmemo.pdf

4.

MEMORANDUM FROM JOHN YOO, DEPUTY ASSISTANT ATTORNEY GENERAL, AND ROBERT J. DELAHUNTY, SPECIAL COUNSEL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, FOR WILLIAM J. HAYNES II, GENERAL COUNSEL, DEPARTMENT OF DEFENSE, RE: APPLICATION OF TREATIES AND LAWS TO AL QAEDA AND TALIBAN DETAINEES

U.S. Department of Justice
January 9, 2002

Pages 1-10: http://www.antiwar.com/rep/020109_yoomemo_1-10.pdf
Pages 11-20: http://www.antiwar.com/rep/020109_yoomemo_11-20.pdf
Pages 21-30: http://www.antiwar.com/rep/020109_yoomemo_21-30.pdf
Pages 31-42: http://www.antiwar.com/rep/020109_yoomemo_31-42.pdf

[Excerpts -- page numbers indicated in brackets]

[1] You have asked our Office's views concerning the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. In particular, you have asked whether the laws of armed conflict apply to the conditions of detention and the procedures for trial of members of al Qaeda and the Taliban militia. We conclude that these treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that that [sic] these treaties do not apply to the Taliban militia. This memorandum expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners.

We believe it most useful to structure the analysis of these questions by focusing on the War Crimes Act, 18 U.S.C. ß 2441 (Supp. III 1997) ("WCA"). The WCA directly incorporates several provisions of international treaties governing the laws of war into the federal criminal code. Part I of this memorandum describes the WCA and the most relevant treaties that it incorporates: the four 1949 Geneva Conventions, which generally regulate the treatment of non combatants, such as prisoners of war ("POWs"), the injured and sick, and civilians.

Part II examines whether al Qaeda detainees can claim the protections of these agreements. Al Qaeda is merely a violent political movement or organization and not a nation-state. As a result, it is ineligible to be a signatory to any treaty. Because of the novel nature of [2] this conflict, moreover, we do not believe that al Qaeda would be included in non-international forms of armed conflict to which some provisions of the Geneva Conventions might apply. Therefore, neither the Geneva Conventions nor the WCA regulate the detention of al Qaeda prisoners captured during the Afghanistan conflict.

Part III discusses whether the same treaty provisions, as incorporated through the WCA, apply to the treatment of captured members of the Taliban militia. We believe that the Geneva Conventions do not apply for several reasons. First, the Taliban was not a government and Afghanistan was not -- even prior to the beginning of the present conflict -- a functioning State during the period in which they engaged in hostilities against the United States and its allies. Afghanistan's status as a failed state is ground alone to find that members of the Taliban militia are not entitled to enemy POW status under the Geneva Conventions. Further, it is clear that the President has the constitutional authority to suspend our treaties with Afghanistan pending the restoration of a legitimate government capable of performing Afghanistan's treaty obligations. Second, it appears from the public evidence that the Taliban militia may have been so intertwined with al Qaeda as to be functionally indistinguishable from it. To the extent that the Taliban militia was more akin to a non-governmental organization that used military force to pursue its religious and political ideology than a functioning government, its members would be on the same legal footing as al Qaeda.

In Part IV, we address the question whether any customary international law of armed conflict might apply to the al Qaeda or Taliban militia members detained during the course of the Afghanistan conflict. We conclude that customary international law, whatever its source and content, does not bind the President, or restrict the actions of the United States military, because it does not constitute federal law recognized under the Supremacy Clause of the Constitution. The President, however, has the constitutional authority as Commander in Chief to interpret and apply the customary or common laws of war in such a way that they would extend to the conduct of members of both al Qaeda and the Taliban, and also to the conduct of the U.S. Armed Forces towards members of those groups taken as prisoners in Afghanistan.

. . . . .

[3] We believe that the WCA provides a useful starting point for our analysis of the application of the Geneva Conventions to the treatment of detainees captured in the Afghanistan theater of operations. Section 2441 of Title 18 renders certain acts punishable as "war crimes." The statutes definition of that term incorporates, by reference, certain treaties or treaty provisions relating to the laws of war, including the Geneva Conventions.

A. SECTION 2441: AN OVERVIEW

Section 2441 reads in full as follows:

"WAR CRIMES

"(a) Offense. -- Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

"(b) Circumstances. -- The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

"(c) Definition. -- As used in this section the term "war crime" means any conduct --

"(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

"(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

"(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or [4]

"(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians."

18 U.S.C. ß 2441.

. . . . .

[6]

D. COMMON ARTICLE 3 OF THE GENEVA CONVENTIONS

Section 2441(c)(3) also defines as a war crime conduct that "constitutes a violation of common Article 3" of the Geneva Conventions. Article 3 is a unique provision that governs the conduct of signatories to the Conventions in a particular kind of conflict that is not one between High Contracting Parties to the Conventions. Thus, common Article 3 may require the United States, as a High Contracting Party, to follow certain rules even if other parties to the conflict are not parties to the Conventions. On the other hand, Article 3 requires state parties to follow only certain minimum standards of treatment toward prisoners, civilians, or the sick and wounded, rather than the Conventions as a whole.

Common Article 3 reads in relevant part as follows:

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

[7] "(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.

"To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

"(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

"(b) taking of hostages;

"(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

"(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

"(2) The wounded and sick shall be collected and cared for. . . .

"The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."

Common article 3 complements common Article 2. Article 2 applies to cases of declared war or of any other armed conflict that may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. Common Article 3, however, covers "armed conflict not of an international character" -- a war that does not involve cross-border attacks -- that occurs within the territory of one of the High Contracting Parties. There is a substantial reason to think that this language refers specifically to a condition of civil war, or a large-scale armed conflict between a State and an armed movement within its own territory.

"To begin with, Article 3's text strongly supports the interpretation that it applies to large-scale conflicts between a State and an insurgent group. First, the language at the end of Article 3 states that "[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict." This provision was designed to ensure that a Party that observed Article 3 during a civil war would not be understood to have granted the "Recognition of the insurgents as an adverse party." Frits Kalshoven, Constraints on the Waging of War 59 (1987). Second, Article 3 is in terms limited to "armed conflict . . . occurring in the territory of one of the High Contracting Parties" (emphasis added). This limitation makes perfect sense if the Article [8] applies to civil wars, which are fought primarily or solely within the territory of a single state. The limitation makes little sense, however, as applied to a conflict between a State and a transnational terrorist group, which may operate from different territorial bases, some of which might be located in States that are parties to the Conventions and some of which might not be. In such a case, the Conventions would apply to a single armed conflict in some scenes of action but not in others -- which seems inexplicable.

This interpretation is supported by commentators. One well-known commentator states that "a non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory." A legal scholar writing in the same year in which the Conventions were prepared stated that "a conflict not of an international character occurring in the territory of one of the High Contracting Parties . . . must normally mean a civil war."

"Analysis of the background to the adoption of the Geneva Conventions in1949 conforms our understanding of common Article 3. It appears that the drafters of the Conventions had in mind only the two forms of armed conflict that were regarded as matters of general international concern at the time: armed conflict between Nation States (subject to Article 2), and large-scale civil war within a Nation State (subject to Article 3). To understand the context in which the Geneva Conventions were drafted, it will be helpful to identify three distinct phases in the development of the laws of war.

First, the traditional law of war was based on a stark dichotomy between "belligerency" and "insurgency." The category of "belligerency" applied to armed conflicts between sovereign States (unless there was recognition of belligerency in a civil war), while the category of "insurgency" applied to armed violence breaking out within the territory of a sovereign State. Correspondingly, international law treated the two classes of conflict in different ways. Interstate wars were regulated by a body of international legal rules governing both the conduct of hostilities and the protection of noncombatants. By contrast, there were very few international rules governing civil unrest, for States preferred to regard internal strife as rebellion, mutiny and treason coming within the purview of national criminal law, which precluded any possible intrusion by other States. This was a "clearly sovereignty-oriented" phase of international law.[9]

The second phase began as early as the Spanish Civil War (1936-39) and extended through the time of the drafting of the Geneva Conventions until relatively recently. During this period, State practice began to apply certain principles of general humanitarian law beyond the traditional field of State-to-State conflict to "those internal conflicts that constituted large-scale civil wars." In addition to the Spanish Civil War, events in 1947 during the Civil War between the Communists and the Nationalist rÈgime in China illustrated this new tendency. Common Article 3, which was prepared during this second phase, was apparently addressed to armed conflicts akin to the Chinese and Spanish civil wars. As one commentator has described it, Article 3 was designed to restrain governments "in the handling of armed violence directed against them for the express purpose of secession or at securing a change of government of a State," but even after the adoption of the Conventions it remained "uncertain whether [Article 3] applied to full-scale civil war."

The third phase represents a more complete break than the second with the traditional "State-sovereignty-oriented approach" of international law. This approach gives central place to individual human rights. As a consequence, it blurs the distinction between international and internal armed conflicts, and even that between civil wars and other forms of internal armed conflict. This approach is well illustrated by the ICTY's decision in Tadic [i.e. The Prosecutor v. Dusko Tadic (Jurisdiction of the Tribunal), (Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia 1995)], which appears to take the view that common Article 3 applies to non-international armed conflicts of any description, and is not limited to civil wars between a State and an insurgent group. In this conception, common Article 3 is not just a complement to common Article 2; rather, it is a catch-all that establishes standards for any and all armed conflicts not included in common Article 2.

[10]

Nonetheless, despite this recent trend, we think that such an interpretation of common Article 3 fails to take into account, not only the language of the provision, but also its historical context. First, as we have described above, such a reading is inconsistent with the text of Article 3 itself, which applies only to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." In conjunction with common Article 2, the text of Article 3 simply does not reach international conflicts where one of the parties is not a Nation State. If we were to read the Geneva Conventions as applying to all forms of armed conflict, we would expect the High Contracting Parties to have used broader language, which they easily could have done. To interpret common Article 3 by expanding its scope well beyond the meaning borne by the text is effectively to amend the Geneva Conventions without the approval of the State Parties to the agreements.

Second, as we have discussed, Article 3 was prepared during a period in which the traditional, State-centered view of international law was still dominant and was only just beginning to give way to a human-rights-based approach. Giving due weight to the State practice and doctrinal understanding of the time, it seems to us overwhelmingly likely that an armed conflict between a Nation State and a transnational terrorist organization, or between a Nation State and a failed State harboring and supporting a transnational terrorist organization, could not have been within the contemplation of the drafters of common Article 3. These would have been simply unforeseen and, therefore, not provided for. Indeed, it seems to have been uncertain even a decade after the Conventions were signed whether common Article 3 applied to armed conflicts that were neither international in character nor civil wars but anti-colonialist wars of independence such as those in Algeria and Kenya. See Gerald Irving Draper, The Red Cross Conventions 15 (1957). Further, it is telling that in order to address this unforeseen circumstance, the State Parties to the Geneva Conventions did not attempt to distort the terms of common Article 3 to apply it to cases that did not fit within its terms. Instead, they drafted two new protocols (neither of which the United States has ratified) to adapt the Conventions to the conditions of contemporary hostilities. Accordingly, common Article 3 is best understood not to apply to such armed conflicts.

Third, it appears that in enacting the WCA, Congress did not understand the scope of Article 3 to extend beyond civil wars to all other types of internal armed conflict. As discussed in our review of the legislative history, when extending the WCA to cover violations of common Article 3, the House apparently understood that it was codifying treaty provisions that "forbid atrocities occurring in both civil wars and wars between nations." If Congress had embraced a much broader view of common Article 3, and hence of 18 U.S.C. ß 2441, we would expect both [11] the statutory text and the legislative history to have included some type of clear statement of congressional intent. The WCA regulates the manner in which the U.S. Armed Forces may conduct military operations against the enemy; as such, it potentially comes into conflict with the President's Commander in Chief power under Article II of the Constitution. As we have advised others earlier in this conflict, the Commander in Chief power gives the President the plenary authority in determining how best to deploy troops in the field. [Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorist and Nations Supporting Them (Sept. 25, 2001)] Any congressional effort to restrict presidential authority by subjecting the conduct of the U.S. Armed Forces to a broad construction of the Geneva Convention, one that is not clearly borne by its text, would represent a possible infringement on presidential discretion to direct the military. We believe that Congress must state explicitly its intention to take the constitutionally dubious step of restricting the President's plenary power over military operations (including the treatment of prisoners), and that, unless Congress clearly demonstrates such an intent, the WCA must be read to avoid such constitutional problems. As Congress has not signaled such a clear intention in this case, we conclude that Article 3 should not be read to include all forms of non-international armed conflict.

. . . . .

Al Qaeda's status as a non-State actor renders it ineligible to claim the protections of the treaties specified by the WCA. Al Qaeda is not a State. It is a non-governmental terrorist organization composed of members from many nations, with ongoing operations in dozens of nations. Its members seem united in following a radical brand of Islam that seeks to attack Americans throughout the world. Non-governmental organizations cannot be parties to any of the international agreements here governing the laws of war. Al Qaeda is not eligible to sign the Geneva Conventions -- and even if it were eligible, it has not done so. Common Article 2, which triggers the Geneva Convention provisions regulating detention conditions and procedures for the trial of POWs, is limited only to cases of declared war or armed conflict "between two or more of the High Contracting Parties." Al Qaeda is not a High Contracting Party. As a result, the U.S. military's treatment of al Qaeda members is not governed by the bulk of the Geneva Conventions, specifically those provisions concerning POWs. Conduct towards captured [12] members of al Qaeda, therefor, also cannot constitute a violation of 18 U.S.C. ß 2441 (c)(1) or ß 2441(c)(2). [Note 24: Some difference in the language of the WCA might be thought to throw some doubt on the exact manner in which the statute incorporates these treaty norms. It might be argued, for example, with respect to the Hague Convention IV, that the WCA does not simply incorporate the terms of the treaty itself, with all of their limitations on application, but instead criminalizes the conduct described by that Convention. The argument starts from the fact that there is a textual difference in the way that the WCA references treaty provisions. Section 2441(c)(2) defines as a war crime conduct "prohibited" by the relevant sections of the Hague Convention IV. By contrast, ß 2441(c)(1) makes a war crime any conduct that constitutes a "grave breach" of the Geneva Conventions, and ß 2441(c)(3) prohibits conduct "which constitutes a violation" of common Article 3 of the Geneva Convention. It might be argued that this difference indicates that ß 2441(c)(2) does not incorporate the treaty into federal law; rather, it prohibits the conduct described by the treaty. Section 2441(c)(3) prohibits conduct "which constitutes a violation of common Article 3" (emphasis added), and that can only be conduct which is a treaty violation. Likewise, ß 2441(c)(1) only criminalizes conduct that is a "grave breach" of the Geneva Conventions -- which, again, must be a treaty violation. In other words, ß 2441(c)(2) might be read to apply even when the Hague Convention IV, by its own terms, would not. On this interpretation, an act could violate ß 2441(c)(2), whether or not the Hague Convention IV applied to the specific situation at issue. We do not think that this interpretation is tenable. To begin with, ß 2441(c)(2) makes clear that to be a war crime, conduct must be "prohibited" by the Hague Convention IV (emphasis added). Use of the word "prohibited," rather than phrases such as "referred to" or "described," indicates that the treaty must, by its own operation, proscribe the conduct at issue. If the Hague Convention IV does not itself apply to a certain conflict, then it cannot itself proscribe any conduct undertaken as part of that conflict. Thus, the most natural reading of the statutory language is that an individual must violate the Hague Convention IV in order to violate Section 2441(c)(2). Had Congress intended broadly to criminalize the types of conduct proscribed by the relevant Hague Convention IV provisions as such, rather than as treaty violations, it could have done so more clearly. Furthermore, the basic purpose of ß 2441 was to implement, by appropriate legislation, the United States' treaty obligations. That purpose would be accomplished by criminalizing acts that were also violations of certain key provisions of the Annex to Hague Convention IV> It would not be served by criminalizing acts of the kind condemned by those provisions, whether or not they were treaty violations. Nothing in the legislative history supports the opposite result. To the contrary, the legislative history suggest an entirely different explanation for the minor variations in language between ß 2441(c)(1) and ß 2441(c)(2). As originally enacted, the WCA criminalized violations of the Geneva Conventions. See Pub. L. No. 104-192, ß 2(a), 110 Stat. 2104, ß 2401 (1996). In signing the original legislation, President Clinton urged that it be expanded to include other serious war crimes involving violation of the Hague Conventions IV and the Amended Protocol II. See 2 Pub. Papers of William J. Clinton 1323 (1996). The Expanded War Crimes Act of 1997, introduced as H.R. 1348 in the 105th Congress, was designed to meet these requests. Thus, ß 2441(c)(2) was added as an amendment at a later time, and was not drafted at the same time and in the same process as ß 2441(c)(1).]

. . . . .

[42] CONCLUSION

For the foregoing reasons, we conclude that neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions in Guantanamo Bay, Cuba, or to trial by military commission of al Qaeda or Taliban prisoners. We also conclude that customary international law has no binding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution. Nonetheless, we also believe that the President, as Commander in Chief, has the constitutional authority to impose the customary laws of war on both the al Qaeda and Taliban groups and the U.S. Armed Forces.

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