Application of Treaties and Laws to al Qaeda and Taliban Detainees

USDOJ Seal

U.S.

Department of Justice

Office of Legal Counsel

Office of the Assistant Attorney General Washington, D.C 20530

January

22,

2002

Memorandum for Alberto R Gonzales

Counsel to the President,

and William J. Haynes II

General Counsel of the Department of Defense

Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees

You have asked for 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 certain treaties forming part of 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 President has sufficient

grounds to find that these treaties do not protect members of 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. § 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 treaty that it

incorporates: the Geneva Convention Relative to the Treatment of Prisoners of War ("Geneva

III").

Parts II and III of this memorandum discuss why other deviations from the text of

Geneva III would not present either a violation of the treaty or of the WCA. Part It explains that

al Qaeda detainees cannot claim the protections of Geneva III because the treaty does not apply

to them. Al Qaeda is merely a violent political movement or organization and not a nation-State.

As a result, it cannot be a state party to any treaty. Because of the novel nature of this conflict,

moreover, a conflict with al Qaeda is not properly included in non-international forms of armed

The four Geneva Conventions for the Protection of Victims of War, dated August 12,1949, were ratified by the

United States on July 14, 1955. These are the Convention for the Amelioration of the Condition of the Wounded

and Sick in Armed Forces in the Field, 6 U.S.T. 3115 ("Geneva Convention I"); the Conversion for the

Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U.S.T. 3219

("Geneva Convention II"); the Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3517 ("Geneva

Convention III"); and the Convention Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 3317

("Geneva Convention IV").

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 why the President may decide that Geneva III, as a whole, does not

protect members of the Taliban militia in the current situation. The President has the

constitutional authority to temporarily suspend our treaty obligations to Afghanistan under the

Geneva Conventions. Although he may exercise this aspect of the treaty power at his discretion,

we outline several grounds upon which he could justify that action here. In particular, he may

determine that Afghanistan was not a functioning State, and therefore that the Taliban militia

was not a government, during the period in which the Taliban was engaged in hostilities against

the United States and its allies. Afghanistan's status as a failed State is sufficient ground alone

for the President to suspend Geneva III, and thus to deprive members of the Taliban militia of

POW status. The President's constitutional power to suspend performance of our treaty

obligations with respect to Afghanistan is not restricted by international law. It encompasses the

power to suspend some treaties but not others, or some but not all obligations under a particular

treaty. Should the President make such a determination, then Geneva III would not apply to

Taliban prisoners and any failure to meet that treaty's requirements would not violate either our

treaty obligations or the WCA.

Part IV examines justifications for any departures from Geneva III requirements should

the President decline to suspend our treaty obligations toward Afghanistan. It explains that

certain deviations from the text of Geneva III may be permissible, as a matter of domestic law, if

they fall within certain justifications or legal exceptions, such as those for self-defense or

infeasibility. Further, Part IV discusses the President's authority to find, even if Geneva III were

to apply, that Taliban members do not qualify as POWs as defined by the treaty.

In Part V, we address the question whether, in the absence of any Geneva III obligations,

customary international law requires, as a matter of federal law, that the President provide certain

standards of treatment for al Qaeda or Taliban prisoners. We conclude that customary

international law, as a matter of domestic law, does not bind the President, or restrict the actions

of the United States military, because it does not constitute either federal law made in pursuance

of the Constitution or a treaty recognized under the Supremacy Clause.

I. Background and Overview of the War Crimes Act and the Geneva Conventions

It is our understanding that your Department is considering two basic plans regarding the

treatment of members of al Qaeda and the Taliban militia detained during the Afghanistan

conflict. First, the Defense Department intends to make available a facility at the U.S. Navy base

at Guantanamo Bay, Cuba ("GTMO"), for the long-term detention of these individuals, who

have come under our control either through capture by our military or transfer from our allies in

Afghanistan. At the present moment, your Department has confined these individuals in

temporary facilities, pending the construction of a more permanent camp at GTMO. While it is

conceivable that some might argue that these facilities are not fully in keeping with the terms of

Geneva III, we understand that they meet minimal humanitarian requirements consistent with the

need to prevent violence and for force protection. We understand that GTMO authorities are

providing these individuals with regular food and medical care, and that basic hygiene and

sanitary standards are being maintained. You have further informed us that your plans for a

longer-term facility at GTMO are still under development.

Second, your Department is developing procedures to implement the President's Military

Order of November 13, 2001, which establishes military commissions for the trial of violations

of the laws of war committed by

non-U.S.

citizens.

The question has arisen whether Geneva III

would restrict the proposed rules, or even require that only courts-martial be used to try members

of al Qaeda or the Taliban militia for war crimes.

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 statute's 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 of Title 18 lists four categories of war crimes. First, it criminalizes "grave

breaches" of the Geneva Conventions, which are defined by treaty and will be discussed below.

Second, it makes illegal conduct prohibited by articles 23, 25, 27 and 28 of the Annex to the

Hague Convention IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat.

2277 ("Hague Convention TV"). Third, it criminalizes violations of what is known as

"commonarticle 3," which is a provision common to all four of the Geneva Conventions. Fourth,

it criminalizes conduct prohibited by certain other laws of war treaties, once the United States

joins them. A House Report states that the original legislation "carries out the international

obligations of the United States under the Geneva Conventions of 1949 to provide criminal

penalties for certain war crimes." H.R. Rep. No. 104-698, at 1 (1996), reprinted in 1996

U.S.C.C.A.N. 2166, 2166. Each of those four conventions includes a clause relating to

legislative implementation and to criminal punishment.

We have discussed in a separate memorandum the federal jurisdiction issues that might arise concerning

Guantanamo Bay. See Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from

Patrick F. Philbin, Deputy Assistant Attorney General and John Yoo, Deputy Assistant Attorney General, Office of

Legal Counsel, Re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba (Dec. 28, 2001).

See generally Memorandum for Alberto R. Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy

Assistant Attorney General, Office of Legal Counsel, Re: Legality of the Use of Military Commissions to Try

Terrorists (Nov. 6, 2001).

The rule of lenity requires that the WCA be read so as to ensure that prospective defendants have adequate notice

of the nature of the acts that the statute condemns. See, e.g., Castillo v. United States, 530 U.S. 120, 131 (2000). In

those cases in which the application of a treaty incorporated by the WCA is unclear, therefore, the rule of lenity

requires that the interpretive issue be resolved in the defendant's favor.

That common clause reads as follows:

The [signatory Nations] undertake to enact any legislation necessary to provide effective penal sanctions

for persons committing, or ordering to be committed, any of the grave breaches of the present Convention..

.. Each [signatory nation] shall be under the obligation to search for persons alleged to have committed, or

to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their

nationality, before its own courts It may also, if it prefers,... hand such persons over for trial to

another [signatory nation], provided such [nation] has made out a prima facie case.

" 3 '

In enacting section 2441, Congress sought to fill certain perceived gaps in the coverage

of federal criminal law. The main gaps were thought to be of two kinds: subject matter

jurisdiction and personal jurisdiction. First, Congress found that "[there are major gaps in the

prosecutability of individuals under federal criminal law for war crimes committed against

Americans."

For example, "the simple killing of a[n American] prisoner of war" was not

covered by any existing Federal statute.

Second, Congress found that "[t]he ability to court

martial members of our armed services who commit war crimes ends when they leave military

service. [Section 2441] would allow for prosecution even after discharge."

Congress considered

it important to fill this gap, not only in the interest of the victims of war crimes, but also of the

accused. "The Americans prosecuted would have available all the procedural protections of the

American justice system. These might be lacking if the United States extradited the individuals

to their victims' home countries for prosecution." Accordingly, section 2441 criminalizes forms

of conduct in which a U.S. national or a member of the Armed Forces may be either a victim or a

perpetrator.

Grave Breaches of the Geneva Conventions

The Geneva Conventions of 1949 remain the agreements to which more States have

become parties than any other concerning the laws of war. Convention I deals with the treatment

of wounded and sick in armed forces in the field; Convention II addresses treatment of the

wounded, sick, and shipwrecked in armed forces at sea; Convention III regulates treatment of

POWs; Convention IV addresses the treatment of citizens.

The Geneva Conventions, like treaties generally, structure legal relationships between

nation-States, not between nation-States and private, transnational or subnational groups or

organizations.

Article 2, which is common to all four Geneva Conventions, makes the

Geneva Convention I, art. 49; Geneva Convention II, art. 50; Geneva Convention III, art. 129; Geneva Convention

IV, art. 146.

H.R. Rep. No. 104-698, at 6, reprinted in 1996 U.S.C.C.A.N. at 2171.

Id. at 5, reprinted in 1996 U.S.C.C.A.N. at 2170. In projecting our criminal law extraterritorially in order to

protect victims who are United States nationals, Congress was apparently relying on the international law principle

of passive personality. The passive personality principle '"asserts that a state may apply law - particularly criminal

law - to an act committed outside its territory by a person not its national where the victim of the act was its

national.'" United States v. Rezaq, 134 F.3d 1121, 1133 (D.C. Cir.), cert,

denied,

525 U.S. 834 (1998). The

principle marks recognition of the fact that "each nation has a legitimate interest that its nationals and permanent

inhabitants not be maimed or disabled from self-support," or otherwise injured. Lauritzen v. Larsen, 345 U.S. 571,

586 (1953); see also Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306,309 (1970).

H.R. Rep. No. 104-698, at 7, reprinted in 1996 U.S.C.C.A.N. at 2172. In United States ex rel. Toth v. Quarles,

350 U.S. 11(1955), the Supreme Court had held that a former serviceman could not constitutionally be tried before

a court martial under the Uniform Code for Military Justice (the "UCMJ") for crimes he was alleged to have

committed while in the armed services. The WCA cured this problem.

'H.R.. Rep. No. 104-698, at 7, reprinted in 1996 U.S.C.C.A.N. at 2172. The principle of nationality in international

law recognizes that (as Congress did here) a State may criminalize acts performed extraterritorially by its own

nationals. See, e.g., Skiriotes v. Florida, 313 U.S. 69, 73 (1941); Steele v. Bulova Watch Co., 344 U.S. 280, 282

(1952).

See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 253 (1984) ("A treaty is in the nature of a

contract between nations."); The Head Money Cases, 112 U.S. 580,598 (1884) ("A treaty is primarily a compact

application of the Conventions to relations between state parties clear. It states that: "the present

Convention shall apply to all cases of declared war or of any other armed conflict which may

arise between two or more of the High Contracting Parties, even if the state of war is not

recognized by one of them."

Similarly, it states that "[t]he Convention shall also apply to all

cases of partial or total occupation of the territory of a High Contracting Party, even if the said

occupation meets with no armed resistance."

As noted above, Section 2441(c)(1) criminalizes "grave breaches" of the Convention.

Each of the four Geneva Conventions has a similar definition of "grave breaches." Geneva

Convention III defines a grave breach as:

wilful killing, torture or inhuman treatment, including biological experiments,

wilfully causing great suffering or serious injury to body or health, compelling a

prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a

prisoner of war of the rights of fair and regular trial prescribed in this Convention.

Geneva Convention III, art. 130. As mentioned before, the Geneva Conventions require the

High Contracting Parties to enact penal legislation to punish anyone who commits or orders a

grave breach. See, e.g., id. art. 129. Further, each State party has the obligation to search for and

bring to justice (either before its courts or by delivering a suspect to another State party) anyone

who commits a grave breach. No State party is permitted to absolve itself or any other nation of

liability for committing a grave breach.

Given the specific definition of "grave breaches," it bears noting that not all breaches of the

Geneva Conventions, are criminalized under Section 2441. Failure to follow some of the

regulations regarding the treatment of POWs, such as difficulty in meeting all of the conditions

set forth for POW camp conditions, does not constitute a grave breach within the meaning of

Geneva Convention III, art. 130. Only by causing great suffering or serious bodily injury to

POWs, killing or torturing them, depriving them of access to a fair trial, or forcing them to serve

in the Armed Forces, could the United States actually commit a grave breach.

C. 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

—

standards that are much less onerous and less detailed than those spelled out in the Conventions

as a whole.

between independent nations."); United States ex rel Saroop

Garcia, 109 F.3d 165, 167 (3d Cir. 1997)

("[treaties are agreements between nations.")

Geneva III art. 2 (emphasis added).

Common Article 3 reads in relevant part as follows:

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.

Common article 3's text provides substantial reason to think that it 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. First, the text of the provision refers specifically to an armed Conflict

that a) is not of an international character, and b) occurs in the territory of a state party to the

Convention. It does not sweep in all armed conflicts, nor does it address a gap left by common

article 2 for international armed conflicts that involve non-state entities (such as an international

terrorist organization) as parties to the conflict. Further, common article 3 addresses only non-

international conflicts that occur within the territory of a single state party, again, like a civil war.

This provision would not reach an armed conflict in which one of the parties operated from

multiple bases in several different states. Also, the language at the end of article 3 states that

"[the 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 state 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."

This interpretation is supported by commentators. One well-known commentary 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

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:

(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;

(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

"Article 2's reference to a state of war "not recognized" by a belligerent was apparently intended to refer to

conflicts such as the 1937 war between China and Japan. Both sides denied that a state of war existed. See Joyce A.

C. Gutteridge, The Geneva Conventions of 1949, 26 Brit. Y.B. Int'l L. 294, 298-99 (1949).

Frits Kalshoven, Constraints on the Waging of War 59(1987).

Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 4339

(Yves Sandoz et al. eds., 1987)

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 in 1949 confirms

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 laws of war were 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.

International law treated the two classes of conflict in different ways. Inter-state 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

armed conflict within a state, 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.

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 general principles of 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 regime 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 in the government of a

Gutteridge, supra, at 300.

See Joseph H. Beale, Jr., The Recognition of Cuban Belligerency, 9 Harv. L. Rev. 406,406

(1896).

See The Prosecutor

Dusko Tadic (Jurisdiction of the Tribunal) (Appeals Chamber of the International Criminal

Tribunal for the Former Yugoslavia 1995) ("Tadic"), 105 I.L.R. 453, 504-05 (E. Lauterpacht & C.J. Greenwood

eds.,

1997).

Id. at 505; see also Gerald Irving Draper, Reflections on Law and Armed Conflicts 107 (1998) ("Before 1949, in

the absence of recognized belligerency accorded to the elements opposed to the government of a State, the law of

war... had no application to internal armed conflicts International law had little or nothing to say as to how the

armed rebellion was crushed by the government concerned, for such matters fell within the domestic jurisdiction of

States. Such conflicts were often waged with great lack of restraint and cruelty. Such conduct was a domestic

matter.").

Tadic, 105 I.L.R. at 507. Indeed, the events of the Spanish Civil War, in which "both the republican Government

[of

Spain]

and third States refused to recognize the [Nationalist] insurgents as belligerents," id. at 507, may be

reflected in common Article 3's reference to "the legal status of the Parties to the conflict."

21See id at

508.

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. This approach is well illustrated by the decision of the International

Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Tadic, which appears to take the

view that common article 3 applies to all armed conflicts of any description other than those

between state parties, and is not limited to internal conflicts 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.

Such an interpretation of common article 3, however, ignores the text and the context in

which it was ratified by the United States. If the state parties had intended the Conventions to

apply to all forms of armed conflict, they could have used broader, clearer language. To

interpret common article 3 by expanding its scope well beyond the meaning borne by its text is

effectively to amend the Geneva Conventions without the approval of the State parties to the

agreements. Further, as we have discussed, article 3 was ratified 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, the idea of 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. Conflicts of these kinds would have been unforeseen and were

not provided for in the Conventions. 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

See Draper, Reflections on Law and Armed Conflicts, supra, at 108.

Some international law authorities seem to suggest that common Article 3 is better read as applying to all forms of

non-international armed Conflict. The Commentary on the Additional Protocols of 8 June 1977 to the Geneva

Conventions of 12 August 1949, supra, after first stating that Article 3 applies when "the government of

single

State [is] in conflict with one or more armed factions within its territory," suggests, in a footnote, that an armed

conflict not of an international character "may also exist in which armed factions fight against each other without

intervention by the armed forces of the established government." ld.\ 4339 at

n.2.

A still broader interpretation

appears to be supported by the language of the decision of the International Court of Justice (the "ICJ") in

Nicaragua v. United States

—

which the United States refused to acknowledge by withdrawing from the compulsory

jurisdiction of the ICJ. Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States),

(International Court of Justice 1986), 76 I.L.R.

1,448,

U 218 (E. Lauterpacht & C.J. Greenwood eds., 1988). The

ICJ's decision is probably best read to suggest that all "armed conflicts" are either international or non-intemational,

and that if they are non-international, they are governed by common Article 3. If that is the correct understanding,

however, the result was merely stated as a conclusion, without taking account either of the precise language of

Article 3 or of the background to its adoption. Moreover, while it was true that one of the conflicts to which the ICJ

was addressing

itself-

"[t]he conflict between the contras' forces and those of the Government of Nicaragua" -

"was an armed conflict which is "not of an international character,'" id. at 448,11219, that conflict was recognizably

a civil war between a State and an insurgent group, not a conflict between or among violent factions in a territory in

which the State had collapsed. Thus there is substantial reason to question the logic and scope of the ICJ's

interpretation of common Article 3, which, in any event, is not binding as a matter of domestic law on the United

States.

common article 3 to apply it to cases that did not fit within its terms. Instead, they drafted two

new protocols to adapt the Conventions to the conditions of contemporary hostilities.

The

United States has not ratified these protocols, and hence cannot be held to the reading of the

Geneva Conventions they promote. Thus, the WCA's prohibition on violations of common

article 3 would apply only to internal conflicts between a state party and an insurgent group,

rather than to all forms of armed conflict not covered by common article 2.

II.

Application of WCA and Associated Treaties to al Qaeda

We conclude that Geneva III does not apply to the al Qaeda terrorist organization.

Therefore, neither the detention nor trial of al Qaeda fighters is subject to Geneva III (or the

WCA).

Three reasons, examined in detail below, support this conclusion. First, al Qaeda is not

a State and thus cannot receive the benefits of a State party to the Conventions. Second, al

Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva

Convention III. Third, the nature of the conflict precludes application of common article 3 of the

Geneva Conventions.

Geneva III does not apply to a non-State actor such as the al Qaeda terrorist

organization. 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. Non-

governmental organizations cannot be parties to any of the international agreements here

governing the laws of war. Common article 2, which triggers the Geneva Convention provisions

regulating detention conditions and procedures for trial of POWs, is limited 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 members of al Qaeda, therefore, also cannot constitute a

violation of

U.S.C. § 2441(c)(1).

Second,

al Qaeda members fail to satisfy the eligibility requirements for treatment as

POWs under Geneva Convention III It might be argued that, even though it is not a State party

to the Geneva Conventions, al Qaeda could be covered by some protections in Geneva

Convention III. Article 4(A)(2) of Geneva III defines prisoners of war as including not only

captured members of the armed forces of a High Contracting Party, but also irregular forces such

as "[members of other militias and members of other volunteer corps, including those of

organized resistance movements." Article 4(A)(3) also includes as POWs "[members of regular

armed forces who profess allegiance to a government or an authority not recognized by the

Detaining Power." Id. art. 4(A)(3). It might be claimed that the broad terms of these provisions

could be stretched to cover al Qaeda.

This view would be mistaken. Article 4 does not expand the application of the

Convention beyond the circumstances expressly addressed in common articles 2 and 3. Unless

See Protocol Additional to the Geneva Conventions of

August 1949, and Relating to the Protection of Victims

of International Armed Conflicts (Protocol

I),

June 8, 1977, 1125 U.N.T.S. 4; Protocol Additional to the Geneva

Conventions of

August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts

(Protocol

II),

June 8, 1977, 1125 U.N.T.S. 610.

there is a conflict subject to article 2, article 4 simply does not apply. If the conflict is one to

which article 3 applies, then article 4 has no role because article 3 does not trigger application of

the rest of the provisions of Geneva III. Rather, article 3 provides an alternative set of standards

that requires only minimal humanitarian protections. As we have explained, the conflict with al

Qaeda does not fall within article 2. As a result, article 4 has no application. In other words,

article 4 cannot be read as an alternative, and a far more expansive, statement of the application

of the Convention. It merely specifies, where there is a conflict covered by article 2 of the

Convention, who must be accorded POW status.

Even if article 4, however, were considered somehow to be jurisdictional as well as

substantive, captured members of al Qaeda still would not receive the protections accorded to

POWs. First, al Qaeda is not the "armed forces," volunteer forces, or militia of a state party that

is a party to the conflict, as defined in article 4(A)(1). Second, they cannot qualify as volunteer

force, militia, or organized resistance force under article 4(A)(2). That article requires that

militia or volunteers fulfill four conditions: command by responsible individuals, wearing

insignia, carrying arms openly, and obeying the laws of war. Al Qaeda members have clearly

demonstrated that they will not follow these basic requirements of lawful warfare. They have

attacked purely civilian targets of no military value; they refused to wear uniform or insignia or

carry arms openly, but instead hijacked civilian airliners, took hostages, and killed them; and

they themselves do not obey*the laws of war concerning the protection of the lives of civilians or

the means of legitimate combat. As these requirements also apply to any regular armed force

under other treaties governing the laws of armed conflict,

al Qaeda members would not qualify

under article 4(A)(3) either, which provides POW status to captured individuals who are

members of a "regular armed force" that professes allegiance to a government or authority not

recognized by the detaining power. Members of al Qaeda, therefore, would not qualify for POW

treatment under article 4, even if it were somehow thought that they were participating in a

conflict covered by common article 2 or if article 4 itself were thought to be jurisdictional in

nature.

Third,

the nature of the conflict precludes application of common article 3 of the Geneva

Conventions. As discussed in Part I, the text of common article 3, when read in harmony with

common article 2, shows that the Geneva Conventions were intended to cover either: a)

traditional wars between state parties to the Conventions (article 2), b) or non-intemational civil

wars (article 3). Our conflict with al Qaeda does not fit into either category. It is not an

international war between nation-States because al Qaeda is not a State. Nor is this conflict a

civil war under article 3, because it is a conflict of "an international character." Al Qaeda

operates in many countries and carried out a massive international attack on the United States on

September 11, 2001. Therefore, the military's treatment of al Qaeda members is not limited

either by common article 3 or 18 U.S.C. § 2441(c)(3).

III.

Application of the Geneva Conventions to the Taliban Militia

Whether the Geneva Conventions apply to the detention and trial of members of the Taliban

militia presents a more difficult legal question. Afghanistan has been a party to all four Geneva

Conventions since September 1956. Some might argue that this requires application of the

Hague Convention IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277.

Geneva Conventions to the present conflict with respect to the Taliban militia, which would then

trigger the WCA. Nonetheless, we conclude that the President has more than ample grounds to

find that our treaty obligations under Geneva III toward Afghanistan were suspended during the

period of the conflict- Under Article II of the Constitution, the President has the unilateral power

to suspend whole treaties or parts of them at his discretion. In this part, we describe the

President's constitutional power and discuss the grounds upon which he can justify the exercise

of that power.

There are several grounds which might the President could exercise that authority here.

First, the weight of informed opinion indicates that, for the period in question, Afghanistan was a

"failed State" whose territory had been largely held by a violent militia or faction rather than by

a government. As a failed state, Afghanistan did not have an operating government nor was it

capable of fulfilling its international obligations. Therefore, the United States could decide to

partially suspend any obligations that the United States might have under Geneva III towards the

Taliban militia. Second, there appears to be developing evidence that the Taliban leadership had

become closely intertwined with, if not utterly dependent upon, al Qaeda. This would have

rendered the Taliban more akin to a terrorist organization that used force not to administer a

government, but for terrorist purposes. The President could decide that no treaty obligations

were owed to such a force.

A. Constitutional Authority

Article II of the Constitution makes clear that the President is vested with all of the

federal executive power, that he "shall be Commander in

Chief,"

that he shall appoint, with the

advice and consent of the Senate, and receive, ambassadors, and that he "shall have Power, by

and with the Advice and Consent of the Senate, to make Treaties." U.S. Const, art. II, § 2, cl. 2.

Congress possesses its own specific foreign affairs powers, primarily those of declaring war,

raising and funding the military, and regulating international commerce. While Article II,

section

of the Constitution grants the President an undefined executive power, Article I, section

1 limits Congress to "[a]ll legislative Powers herein granted" in the rest of Article I.

From the very beginnings of the Republic, this constitutional arrangement has been

understood to grant the President plenary control over the conduct of foreign relations. As

Secretary of State Thomas Jefferson observed during the first Washington administration: "The

constitution has divided the powers of government into three branches

[and]...

has declared that

'the executive powers shall be vested in the President," submitting only special articles of it to a

negative by the senate."

Due to this structure, Jefferson continued,

[t]he transaction of

business with foreign nations is Executive altogether. It belongs then to the head of that

department, except as to such portions of it as are specially submitted to the Senate. Exceptions

are to be construed strictly."

In defending President Washington's authority to issue the

Neutrality Proclamation, Alexander Hamilton came to the same interpretation of the President's

foreign affairs powers. According to Hamilton, Article II "ought ... to be considered as

intended ... to specify and regulate the principal articles implied in the definition of Executive

Thomas Jefferson, Opinion on the Powers of the Senate Respecting Diplomatic Appointments (1790), reprinted in

16 The Papers of Thomas Jefferson 378 (Julian P. Boyd ed., 1961).

Mat 379.

Power; leaving the rest to flow from the general grant of that power." As future Chief Justice

John Marshall famously declared a few years later, "The President is the sole organ of the nation

in its external relations, and its sole representative with foreign nations. . . . The [executive]

department.., is entrusted with the whole foreign intercourse of the nation "

On the few occasions where it has addressed the question, the Supreme Court has lent its

approval to the executive branch's broad powers in the field of foreign affairs. Responsibility for

the conduct of foreign affairs and for protecting the national security are, as the Supreme Court

has observed, '"central Presidential domains."

The President's constitutional primacy flows

from both his unique position in the constitutional structure and from the specific grants of

authority in Article II making the President the Chief Executive of the Nation and the

Commander in

Chief.

Due to the President's constitutionally superior position, the Supreme

Court has consistently "recognized 'the generally accepted view that foreign policy [is] the

province and responsibility of the Executive.'"

This foreign affairs power is independent of

Congress: it is "the very delicate, plenary and exclusive power of the President as sole organ of

the federal government in the field of international relations - a power which does not require as

a basis for its exercise an act of Congress."

In light of these principles, any unenumerated executive power, especially one relating to

foreign affairs, must be construed as within the control of the President. Although the

Constitution does not specifically mention the power to suspend or terminate treaties, these

authorities have been understood by the courts and long executive branch practice as belonging

solely to the President. The treaty power is fundamentally an executive power established in

Article II of the Constitution, and power over treaty matters post-ratification are within the

President's plenary authority. As Alexander Hamilton declared during the controversy over the

Neutrality Proclamation, "though treaties can only be made by the President and Senate, their

activity may be continued or suspended by the President alone."

Commentators also have

supported this view. According to the drafters of the Restatement (Third) of the Foreign

Relations Law of the United States, the President has the power either "to suspend or terminate

an [international] agreement in accordance with its terms," or "to make the determination that

would justify the United States in terminating or suspending an agreement because of its

violation by another party or because of supervening events, and to proceed to terminate or

suspend the agreement on behalf of the United States."

Indeed, the President's power to

terminate treaties, which has been accepted by practice and considered opinion of the three

branches,

must include the lesser power of temporarily suspending them. We have discussed

these questions in detail in recent opinions, and we follow their analysis here.

Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33, 39 (Harold C.

Syrett et

al.

eds., 1969).

10 Annals of

Cong.

613-14 (1800),

Harlow

Fitzgerald, 457 U.S. 800, 812 n.19 (1982).

Nixon v. Fitzgerald, 457 U.S. 731,749-50 (1982).

Department of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280,293-94 (1981)).

United States v. Curtiss-Wright Export Corp., 299 U.S. 304,320 (1936).

Hamilton, Pacificus No. 1, supra, at 42.

Restatement (Third) of the Foreign Relations Law of the United States §339 (1987).

See,

e.g.,

Memorandum for Alberto R. Gonzales, Counsel to the President, from: Jay S. Bybee, Assistant Attorney

General, Re: Authority of the President to Denounce the ABM Treaty (Dec. 14, 2001); Goldwater

Carter, 617

The courts have often acknowledged the President's constitutional powers with respect to

treaties. Thus, it has long been accepted that the President may determine whether a treaty has

lapsed because a foreign State has gained or lost its independence, or because it has undergone

other changes in sovereignty.

Nonperformance of a particular treaty obligation may, in the

President's judgment, justify a decision to suspend or terminate the treaty.

While Presidents

have unrestricted discretion, as a matter of domestic law, in suspending treaties, they can base

the exercise of this discretion on several grounds. For example, the President may determine that

"the conditions essential to [the treaty's] continued effectiveness no longer pertain."

He can

decide to suspend treaty obligations because of a fundamental change in circumstances, as the

United States did in 1941 in response to hostilities in Europe.

The President may also

determine that a material breach of a treaty by a foreign government has rendered a treaty not in

effect as to that government.

Exercising this constitutional authority, the President can decide to suspend temporarily

our obligations under Geneva III toward Afghanistan. Other Presidents have partially suspended

treaties, and have suspended the obligations of multilateral agreements with regard to one of the

state parties.

The President could also determine that relations under the Geneva Conventions

F.2d 697, 706-07 (D.C. Cir.) (en banc), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979);

Senate Comm. on Foreign Relations, 106

Cong., Treaties and Other International Agreements: The Role of the

United States Senate 201 (Comm. Print 2001) (prepared by Congressional Research Service, Library of Congress)

(footnotes omitted)

See Memorandum for John Bellinger, III, Senior Associate Counsel and Legal Adviser to the National Security

Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of

Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001);

see also Memorandum for William Howard Taft, IV, Legal Adviser, Department of State, from John Yoo, Deputy

Assistant Attorney General, Office of Legal Counsel, Re: President's Constitutional Authority to Withdraw Treaties

from the Senate (Aug. 24, 2001).

See Kennett

Chambers, 55 U.S. 38, 47-48, 51 (1852); Terlinden v. Ames, 184 U.S. 270,288 (1902); Saroop v.

Garcia, 109 F.3d 165, 171 (3d. Cir. 1997) (collecting cases). Alexander Hamilton argued in 1793 that the

revolution in France had triggered the power (indeed, the duty) of the President to determine whether the pre-

existing treaty of alliance with the King of France remained in effect. The President's constitutional powers, he said,

"include that of judging, in the case of a Revolution of Government in a foreign Country, whether the new rulers

are competent organs of the National Will and ought to be recognised or not: And where a treaty antecedently exists

between the UStates and such nation that right involves the power of giving operation or not to such treaty."

Alexander Hamilton, Pacificus No. 1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33,41 (Harold C.

Syrett et al. eds 1969).

See Taylor

Morton, 23 F. Cas. 784, 787 (C.C.D. Mass. 1855) (No. 13,799) (Curtis, Circuit Justice),

affd,

U.S.

(2 Black) 481 (1862).

See International Load Line Convention, 40 Op. Att'y Gen. 119,124 (1941). Changed conditions have provided a

basis on which Presidents have suspended treaties in the past. For example, in 1939, President Franklin Roosevelt

suspended the operation of the London Naval Treaty of 1936. "The war in Europe had caused several contracting

parties to suspend the treaty, for the obvious reason that it was impossible to limit naval armaments. The notice of

termination was therefore grounded on changed circumstances." David Gray Adler, The Constitution and the

Termination of Treaties 187 (1986).

International Load Line Convention, 40 Op. Att'y Gen. at 123.

See, e.g., Charlton v. Kelly, 229 U.S. 447,473 (1913); Escobedo v. United States, 623 F.2d 1098, 1106 (5th Cir.),

cert,

denied,

449 U.S. 1036 (1980).

In 1986, the United States suspended the performance of its obligations under the Security Treaty (ANZUS Pact),

T.I.A.S. 2493,3 U.S.T. 3420, entered into force April 29, 1952, as to New Zealand but not as to Australia. See

Marian Nash (Leich), I Cumulative Digest of United States Practice in International Law 1981-1988, at

1279-81.

with Afghanistan should be restored once an Afghan government that is willing and able to

execute the country's treaty obligations is securely established.

A decision to regard the

Geneva Conventions as suspended would not constitute a "denunciation" of the Conventions, for

which procedures are prescribed in the Conventions.

The President need not regard the

Conventions as suspended in their entirety, but only in part.

Among the grounds upon which a President may justify his power to suspend treaties is

the collapse of a treaty partner, in other words the development of a failed state that could not

fulfill its international obligations and was not under the control of any government. This has

been implicitly recognized by the Supreme Court. In Clark v. Allen, 331 U.S. 503 (1947), the

Supreme Court considered whether a 1923 treaty with Germany continued to exist after the

defeat, occupation and partition of Germany by the victorious World War II Allies. The Court

rejected the argument that the treaty "must be held to have failed to survive the [Second World

War],

since Germany, as a result of its defeat and the occupation by the Allies, has ceased to

exist as an independent national or international community."

Instead, the Court held that "the

question whether a state is in a position to perform its treaty obligations is essentially a political

question. Terlinden v. Ames, 184 U.S. 270, 288 [(1902)]. We find no evidence that the political

departments have considered the collapse and surrender of Germany as putting an end to such

provisions of the treaty as survived the outbreak of the war or the obligations of either party in

respect to them."

In Clark, the Court also made clear that the President could consider whether

Germany was able to perform its international obligations in deciding whether to suspend our

treaty relationship with her.

Thus,

suspension of the Geneva Conventions as to Afghanistan would not affect the United States' relationships

under the Conventions with other state parties.

On June 20, 1876, for example, President Grant informed Congress that he was suspending the extradition clause

of the 1842 "Webster-Ashburton Treaty" with Great Britain, Convention as to Boundaries, Suppression of Slave

Trade and Extradition, Aug. 9, 1842, U.S.-Gr. Brit., Art 10, 8 Stat. 572, 579. Grant advised Congress that the release

of two fugitives whose extradition was sought by the United States amounted to the abrogation or annulment of the

extradition clause, and that the executive branch in response would take no action to surrender fugitives sought by

the British Government unless Congress signified that it do so. The clause remained suspended until it was

reactivated by the British Government's resumed performance.

See, e.g., Geneva Convention III, art 142. The suspension of

treaty is distinct from the denunciation or

termination of

one.

Suspension is generally a milder measure than termination, often being partial, temporary, or

contingent upon circumstances that can be altered by the actions of the parties to the treaty. Moreover, at least in the

United States, suspension of

treaty can be reversed by unilateral executive action, whereas termination, which

annuls a treaty, and which is therefore more disruptive of international relationships, would require Senate consent

to a new treaty to be undone.

In general, the partial suspension of the provisions of a treaty (as distinct from both termination and complete

suspension) is recognized as permissible under international law. Article 60 of the Vienna Convention on treaties

explicitly permits the suspension of a treaty "in whole or in part." "[U]nder both treaty law and non-forcible reprisal

law as a basis for responsive suspension it is clear that suspension may be only partial and need not suspend or

terminate an agreement as a whole, in contrast, for example, with treaty withdrawal clauses." John Norton Moore,

Enhancing Compliance

With

International Law: A Neglected Remedy, 39 Va. J. Int'l L. 881,932 (1999). It should

be noted, however, that the United States is not a party to the Vienna Convention on treaties, although it has treated

its rules as customary international law. This issue is explored in greater detail, infra Part III.C.

331U.S. at 514.

Id.;

see

also

id.

at 508-09 (President might have "formulated a national policy quite inconsistent with the

enforcement" of the treaty).

Clark demonstrates the Supreme Court's sanction for the President's constitutional

authority to decide the "political question" whether our treaty with Germany was suspended

because Germany was not in a position to perform its international obligations. Equally here, the

executive branch could conclude that Afghanistan, was not "in a position to perform its treaty

obligations" because it lacked, at least throughout the Taliban's ascendancy, a functioning

central government and other essential attributes of statehood. Based on such facts, the President

would have the ground to decide that the Nation's Geneva

III.

obligations were suspended as to

Afghanistan. The President could further decide that these obligations are suspended until

Afghanistan became a functioning state that is in a position to perform its Convention duties.

The federal courts would not review such political questions, but instead would defer to the

decision of the President.

Status as a Failed State

There are ample grounds for the President to determine that Afghanistan was a failed State,

and on that basis to suspend performance of our Geneva III obligations towards it.

Indeed, the

findings of the State and Defense Departments, of foreign leaders, and of expert opinion support

the conclusion that Afghanistan under the Taliban was without a functioning central government.

The collapse of functioning political institutions in Afghanistan is a valid justification for the

exercise of the President's authority to suspend our treaty obligations towards that country.

Such a determination would amount to finding that Afghanistan was a "failed state." A

"failed State" is generally characterized by the collapse or near-collapse of State authority. Such

a collapse is marked by the inability of central authorities to maintain government institutions,

ensure law and order or engage in normal dealings with other governments, and by the

prevalence of violence that destabilizes civil society and the economy.

An initial approach to the question whether Afghanistan was a failed state is to examine

some of the traditional indicia of statehood.

A State has failed when centralized governmental

authority has almost completely collapsed, no central authorities are capable of maintaining

government institutions or ensuring law and order, and violence has destabilized civil society and

We should not be understood to be saying that the President's basis for suspending the Geneva Conventions as to

Afghanistan is merely the fact that Afghanistan underwent a change of government in 1996, after the military

successes of Taliban. The general rule of international law is that treaty relations survive a change of government.

See, e.g., 2 Marjorie M. Whiteman, Digest of International Law 771-73 (1963); J.L. Brierly, The Law of Nations

144-45 (6th ed. 1963); Eleanor C. McDowell, Contemporary Practice of the United States Relating to International

Law, 71 Am. J. Int'l L. 337 (1977). The general rule is that treaties may still be observed even as to State parties, the

current governments of which have been unrecognized. See New York Chinese TV Programs v. U.E. Enterprises,

954 F.2d 847 (2d Cir. 1992); see also Restatement (Third) of the Foreign Relations Law of the United States § 202

cmts.

a, b (1987).

It would be mistaken to argue that the concept of a failed State is not legal in nature, and thus cannot be taken into

account in determining whether to suspend our Geneva III obligations toward Afghanistan. Legal scholars as well

as political scientists have employed the concept for some time. Moreover, even if taken only as a category of

political science, the term "failed State" encapsulates a description of structural conditions within a country such as

Afghanistan) that are directly relevant to considering whether that country has lapsed for legal purposes into a

condition of statelessness.

the economy.

Borrowing from the Restatement (Third) of U.S. Foreign Relations Law, we may

conclude that a state has "failed" if it cannot satisfy some or all of the three traditional tests for

"statehood" under international law: i) whether the entity has a defined territory and population;

ii) whether the territory/population is under the control of its own government; and iii) whether

the entity engages in or has the capacity to engage in formal relations with other States.

The

State Department has restated this formulation by elaborating a four-part test for statehood: i)

whether the entity have effective control over a clearly defined territory and population; ii)

whether an organized governmental administration of the territory exists; iii) whether the entity

has the capacity to act effectively to conduct foreign relations and to fulfill international

obligations; iv) whether the international community recognizes the entity.

We want to make clear that this Office does not have access to all of the facts related to

the activities of the Taliban militia and al Qaeda in Afghanistan. Nonetheless, the available facts

in the public record would support the conclusion that Afghanistan was a failed State

—

including

facts that pre-existed the military reversals suffered by the Taliban militia and the formation of

the new transitional government pursuant to the Bonn Agreement. Indeed, there are good

reasons to doubt whether any of the conditions were met.

First, even before the outset of the conflict with the United States, the Taliban militia did

not have effective control over a clearly defined territory and population. It is unclear whether

the Taliban militia ever fully controlled most of the territory of Afghanistan. At the time that

the United States air strikes began, at least ten percent of the country, and the population within

those areas, was governed by the Northern Alliance. Indeed, the facts suggest that Afghanistan

was divided between different tribal and warring factions, rather than controlled by any central

State. The Taliban militia in essence represented only an ethnically Pashtun movement, a "tribal

"States in which institutions and law and order have totally or partially collapsed under the pressure and amidst

the confusion of erupting violence, yet which subsist as a ghostly presence on the world map, are now commonly

referred to as 'failed States' or "etats sans gouvernmement.'" Daniel Thurer, The Failed State and International

Law, International Review of the Red Cross No. 836 (Dec. 31, 1999), available at http://www.icrc.org/eng/review

(visited Jan. 10, 2002). Somewhat different tests have been used for determining whether a State has "failed." First,

the most salient characteristic of a "failed State" seems to be the disappearance of a "central government." Yoram

Dinstein, The Thirteenth Waldemar

Solf

Lecture in International Law, 166 Mil. L. Rev. 93, 103 (2000); see also

id. ("All that remains is a multiplicity of groups of irregular combatants fighting each other."). Closely related to

this test, but perhaps somewhat broader, is the definition of a "failed State" as "a situation where the government is

unable to discharge basic governmental functions with respect to its populace and its territory. Consequently, laws

are not made, cases are not decided, order is not preserved and societal cohesion deteriorates. Basic services such as

medical care, education, infrastructure maintenance, tax collection and other functions and services rendered by

central governing authorities cease to exist or exist only in limited areas." Ruth Gordon, Growing Constitutions, 1

U. Pa. J. Const. L. 528,533-34 (1999). Professor Thurer distinguishes three elements (respectively, territorial,

political and functional) said to characterize a "failed State": 1) failed States undergo an "implosion rather than an

explosion of the structures of power and authority, the disintegration and destructuring of States rather than their

dismemberment;" 2) they experience "the total or near total breakdown of structures guaranteeing law and order;"

and 3) there are marked by "the absence of bodies capable, on the one hand, of representing the State at the

international level and, on the other, of being influenced by the outside world."

See Restatement (Third) of the Foreign Relations Law of the United States §

201;

see also 1933 Montevideo

Convention on Rights and Duties of States, art. 1,49 Stat. 3097, 28 Am. J. Int'l L. Supp. 75 (1934).

Eleanor C. McDowell, Contemporary Practice of the United States Relating to International Law, 71 Am. J. Int'l

L. 337(1977).

militia"

that did not command the allegiance of other major ethnic groups in Afghanistan and

that was apparently unable to suppress endemic violence in the country. As a prominent writer

on the Taliban militia wrote well before the current conflict began, "[e]ven if [the Taliban] were

to conquer the north, it would not bring stability, only continuing guerrilla war by the non-

Pashtuns, but this time from bases in Central Asia and Iran which would further destabilize the

region."

Second, again even before the United States air strikes and the successes of

the

Northern

Alliance, an organized governmental administration did not exist in Afghanistan. One noted

expert on the Taliban has concluded that the country had

ceased to exist as a viable state .... The entire Afghan population has been

displaced, not once but many times over. The physical destruction of Kabul has

turned it into the Dresden of the late twentieth century.. .. There is no semblance

of an infrastructure that can sustain society

—

even at the lowest common

denominator of

poverty.

. . . The economy is a black hole that is sucking in its

neighbors with illicit trade and the smuggling of drugs and weapons, undermining

them in the process. . . . Complex relationships of power and authority built up

over centuries have broken down completely. No single group or leader has the

legitimacy to reunite the country. Rather than a national identity or kinship-tribal-

based identities, territorial regional identities have become paramount. . . . [T]he

Taliban refuse to define the Afghan state they want to constitute and rule over,

largely because they

have

no idea what they want. The lack of a central authority,

state organizations, a methodology for command and control and mechanisms

which can reflect some level of popular participation . . . make it impossible for

many Afghans to accept the Taliban or for the outside world to recognize a

Taliban government.... No warlord faction has ever felt itself responsible for the

civilian population, but the Taliban are incapable of carrying out even the

minimum of developmental work because they believe that Islam will take care of

everyone.

Another expert had reached similar conclusions before the outbreak of the conflict:

Afghanistan today has become a violent society, bereft of political institutions that

function correctly and an economy that functions at all. When this is coupled

with the destruction of population and the physical infrastructure . . ,, it becomes

clear that Afghanistan is a country on the edge of collapse, or at least profound

transformation. . . . With the Taliban, there are few meaningful governmental

structures and little that actually functions.

Larry P. Goodson, Afghanistan's Endless War: State Failure, Regional Politics, and the Rise of the Taliban 46,

115(2001).

Ahmed Rashid, Taliban: Militant Islam, Oil & Fundamentalism in Central Asia 213 (2001).

56 Id

.at207-08,212-13.

Goodson, supra, at 103-04; 115.

The State Department has come to similar conclusions, In testimony early in October

2001 before the Senate Foreign Relations Committee's Subcommittee on Near East and South

Asian Affairs, Assistant Secretary of State for South Asian Affairs Christina Rocca explained

that:

[twenty-two years of conflict have steadily devastated [Afghanistan], destroyed

its physical and political infrastructure, shattered its institutions, and wrecked its

socio-economic fabric.... The Taliban have shown no desire to provide even the

most rudimentary health, education, and other social services expected of any

government. Instead, they have chosen to devote their resources to waging war

on the Afghan people, and exporting instability to their neighbors.

Rather than performing normal government functions, the Taliban militia exhibited the

characteristics of

criminal gang. The United Nations Security Council found that the Taliban

militia extracted massive profits from illegal drug trafficking in Afghanistan and subsidized

terrorism from those revenues.

Third, the Taliban militia

was"

unable to conduct normal foreign relations or to fulfill its

international legal obligations. Publicly known facts suggest that the Taliban was unable to obey

its international obligations and to conduct normal diplomatic relations. Thus, the Taliban

militia consistently refused to comply with United Nations Security Council Resolutions 1333

(2000) and 1267 (1999), which called on it to surrender Osama bin Laden to justice and to take

other actions to abate terrorism based in Afghanistan.

Those resolutions also called on all

States to deny permission for aircraft to take off or to land if they were owned or operated by or

for the Taliban, and to freeze funds and other resources owned or controlled by the Taliban.

Reportedly, the Taliban militia also may have been unable to extradite bin Laden at the request

of Saudi Arabia in September, 1998, despite its close relations with the Saudi government. As a

United States Department of State, International Information Programs, Rocca Blames Taliban for Humanitarian

Disaster in Afghanistan (Oct. 10,2001), available at http://www.usinfo.state.gov/regional/nea/sasia/afghan/

text2001/1010roca.htm (visited Jan. 10. 2001).

See U.N. Security Council Resolution 1333 (2000), available at http://www.un.org/Docs/scres/2000/resI 333e.pdf

(finding that "the Taliban benefits directly from the cultivation of illicit opium by imposing a tax on its production

and indirectly benefits from the processing and trafficking of such opium, and... these substantial resources

strengthen the Taliban's capacity to harbor terrorists"). The United States Government has amassed substantial

evidence that the Taliban has condoned and profited from narco-trafficking on a massive scale, with disastrous

effects on neighboring countries. See The Taliban, Terrorism, and Drug Trade: Hearing Before the Subcomm. on

Criminal Justice, Drug Policy and Human Resources of the House Comm. on Government Reform, 107th Cong.

(2001) (testimony of William Bach, Director, Office of Asia, Africa, Europe, NIS Programs, Bureau of International

Narcotics and Law Enforcement Affairs, Department of State; testimony of Asa Hutchinson, Administrator, Drug

Enforcement Administration, U.S. Department of Justice).

U.N. Security Council Resolution 1333 "strongly condemn[ed]" the Taliban for the "sheltering and training of

terrorists and [the] planning of terrorist acts," and "deplored the fact that the Taliban continues to provide a safe

haven to Usama bin Laden and to allow him and others associated with him to operate a network of terrorist training

camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international

terrorist operations." U.N. Security Council Resolution 1214, 13 (1998) enjoined the Taliban to stop providing a

sanctuary and training for terrorists. U.N. Security Council Resolution 1267, 2 (1999), stated that the Taliban's

failure to comply with the Council's 1998 demand constituted a threat to the peace. See Sean D. Murphy, Efforts to

Obtain Custody of Osama Bin Laden, 94 Am. J. Int'l L. 366 (2000).

result, the Saudi government expelled the Afghan charge

d'affaires.

The Taliban's continuing

role in sheltering and supporting those believed to be responsible for the terrorist attacks of

September

11,

2001

placed it in clear breach of international law, which required it to prevent the

use of its territory

a launching pad for attacks against other nations.

It has been suggested by government officials and independent press reports that the

Taliban militia had become so subject to the domination and control of al Qaeda that it could not

pursue independent policies with respect to the outside world.

Former Ambassador Robert

Oakley described the relationship as "very close. The Taliban and bin Laden, particularly

Mullah Omar, go way, way back . . . [Bin Laden] has helped the Taliban with material support

since they began their movement in Afghanistan."

Richard Haass, Director of the State

Department's Office of the Policy Planning

Staff,

has noted that the Taliban "have accepted

substantial financial support from and proved themselves subservient to" al Qaeda.

Al Qaeda

apparently supplied the Taliban regime with money, materiel, and personnel to help it gain the

upper hand in its ongoing battles with the Northern Alliance.

Because al Qaeda was capable of

mustering more formidable military forces than the Taliban at any given point, and because

failure to protect bin Laden would have cost the Taliban the support of radical Islamists, it may

well have been impossible for the Taliban to surrender bin Laden as directed by the United

Nations, even if it had been willing to do so. While a policy decision to violate international law

"See Yossef Bodansky, Bin Laden: The Man Who Declared War on America 301-02 (2001).

See Robert F. Turner, International Law and the Use of Force in Response to the World Trade Center and

Pentagon Attacks, available at http://jurist.law.pitt.edu/forum/forumnew34.htm (visited Jan. 10,2002) ("If (as has

been claimed by the US and UK governments) bin Laden masterminded the attacks on New York and Washington,

Afghanistan is in breach of its state responsibility to take reasonable measures to prevent its territory from being

used to launch attacks against other

states.

The United States and its allies thus have a legal right to violate

Afghanistan's territorial integrity to destroy bin Laden and related terrorist targets. If the Taliban elects to join

forces with bin Laden, it, too, becomes a lawful target."); see also W. Michael Reisman, International Legal

Responses to Terrorism, 22 Hous. J. Int'l L. 3, 40-42, 51-54 (1999).

See, e.g., Michael Dobbs & Vernon Loeb, 2 U.S. Targets Bound by Fate, Wash. Post, Nov. 14, 2001 at A22

("According to Thomas Gouttierre, an Afghan expert at the University of Nebraska and a former UN adviser, the so-

called Afghan Arabs surrounding bin Laden were much more educated and articulate than the often illiterate Taliban

and succeeded in convincing them that they were at the head of a world-wide Islamic renaissance. 'Al Qaeda ended

up hijacking a large part of the Taliban movement,' he said, noting that (Taliban supreme religious leader

Mohammed] Omar and bin Laden were 'very, very tight' by 1998."); Peter Baker, Defector Says Bin Laden Had

Cash,

Taliban In His Pocket, Wash. Post, Nov. 30, 2001 at Al (reporting claims by former Taliban official of al

Qaeda's corruption of Taliban officials).

Online News Hour: The Taliban (Sept. 15, 2001), available at http://www.pbs.org/newshour/bb/terrorism/july-

dec01/taliban 9-15.html (visited Jan. 15.2002).

The Bush Administration's Response to September ll'

- and

Beyond,

Remarks to the Council of Foreign

Relations (Oct. 15, 2001), available at http://www.yale.edu/lawweb/avalon/sept 11/haass

001

.htm (visited Jan.

15,2002).

* The so-called "55* Brigade," a military force consisting primarily of Arabs under Syrian and Saudi commanders,

was based outside of Kabul and was trained, maintained and paid for by al Qaeda. It "provided crucial support to

Taliban forces during offensives against the Northern Alliance over the past five years." Michael Jansen, US

focused initially on bin Laden Mercenaries, The Irish Times on the Web (Oct 30,2001), available at

http://www.ireland.coewspaper/world/2001/1030/wor6.htm (visited Jan. 15,2002). According to some reports,

these al Qaeda fighters were the most aggressive and ideologically committed forces available to the Taliban

leadership, and were used to control other Taliban units. See also Michael Kranish & Indira A.R. Lakshmanan,

Partners in

'Jihad':

Bin Laden Ties to Taliban, Boston Globe, Oct.

28,2001,

at Al. This article contains

especially detailed information about the close linkages between the two movements and their leaders.

would not be grounds to deny statehood, if al Qaeda - a non-governmental terrorist organization

- possessed such power within Afghanistan to prevent its alleged rulers from taking action

against it as ordered by the U.N., this would indicate that the Taliban militia did not exercise

sufficient governmental control within the territory to fulfill its international obligations.

The Taliban militia's failure to carry out its international obligations became even further

apparent during the conflict

itself.

During the United States' campaign in Afghanistan, Secretary

Rumsfeld noted that the Taliban "are using mosques for ammunition storage areas. They are

using mosques for command and control and meeting places. They are putting tanks and

artillery pieces in close proximity to hospitals, schools, and residential areas." In a series of

"Fact Sheets" issued during the campaign, the State Department described in detail many of the

atrocities committed by the Taliban and al Qaeda before and during the United States' military

operations. These included massacres of both prisoners and civilians. For example, the State

Department reported that in August, 2000, the Taliban had "executed POWs in the streets of

Herat as a lesson to the local population."

The State Department also reported on November 2,

2001 that "[t]he Taliban have put the Afghan civilian population in grave danger by deliberately

hiding their soldiers and equipment in civilian areas, including in mosques." According to

State, the Taliban "massacred hundreds of Afghan civilians, including women and children, in

Yakaoloang, Mazar-I-Sharif, Bamiyan, Qezelabad, and other towns."

For example, the State

Department noted, a report by the United Nations Secretary General regarding the July, 1999,

massacre in the Shomaili Plains stated that "[t]he Taliban forces, who allegedly carried out these

acts,

essentially treated the civilian population with hostility and made no distinction between

combatants and non-combatants."

All of this evidence goes to prove that the Taliban militia

regularly refused to follow the laws of armed conflict, which, besides independently providing

grounds for a presidential suspension of Geneva III, also demonstrate that Afghanistan had

become a failed state and was under the control not of a government but of a violent terrorist

group.

Fourth, the Taliban militia was not recognized as the legitimate government of

Afghanistan by the United States or by any member of the international community except

Pakistan. Neither the United States nor the United Nations ever recognized that the Taliban

militia was a government. The only two other States that had maintained diplomatic relations

with it before the current conflict began (Saudi Arabia and the United Arab Emirates) soon

Transcript: Rumsfeld Says Taliban Functioning As Military Force Only, supra.

Fact Sheet on Al Qaeda and Taliban Atrocities (released Nov. 22, 2001 by Coalition Information Center),

available at http://www.usinfo.state.gov/topical/pol/terror/01112301.htm (visited Jan. 15,2002). The source cited

for this particular report was the Defense Department.

Fact Sheet: Taliban Actions Imperil Afghan Civilians (Nov. 2,2001), available at http://wwww.usinfo.state.gov/

topical/pol/terror/01110203.htm (visited Jan. 1.5, 2002). Further, the State Department publicized reports from The

Washington Post that the Taliban was using entire villages as human shields to protect their stockpiles of

ammunition and weapons, that they were relocating the police ministry in Kandahar to mosques, that they had taken

over NGO relief organization buildings, and that they were discovered transporting tanks and mortar shells in the

guise of humanitarian

relief.

Fact Sheet: The Taliban's Betrayal of the Afghan People (Nov. 6, 2001), available at

http://www.usinfo.state.gov/topical/pol/terror/01110608.htm (visited Jan. 15,2002).

Id.

Id. (quoting report; no citation given).

severed them.

Even Pakistan had withdrawn its recognition before the end of hostilities

between the United States and the Taliban forces. This universal refusal to recognize the Taliban

militia as a government demonstrates that other nations and the United Nations concurred in a

judgment that the Taliban militia was no government and that Afghanistan had ceased to operate

as a nation-State.

Indeed, the cabinet departments of the U.S. Government best positioned to determine

whether Afghanistan constituted a failed state appear to have reached that conclusion some time

ago.

Secretary of Defense Donald Rumsfeld, for example, declared at a November 2, 2001 press

conference that the "Taliban is not a government. The government of Afghanistan does not exist

today. The Taliban never was a government as such. It was a force in the country that is not

substantially weakened - in many cases cloistered away from the people."

Secretary Rumsfeld

has made substantially the same remarks on several other occasions. On October 29, 2001, he

described the Taliban as "an illegitimate, un-elected group of terrorists."

And on November 4,

2001,

he stated at a press conference with the Foreign Minister of Pakistan that "Taliban is not

really functioning as a government as such. There is really not a government to speak of in

Afghanistan today."

On November 11, 2001, the Secretary emphasized the extent to which

Afghanistan had fallen under the control of al Qaeda: "for all practical purposes, the al Qaeda

has taken over the country."

Secretary Rumsfeld's final statement indicates his belief that no

real government functioned in Afghanistan, but rather that groups of armed, violent militants had

come into control.

In the recent past, the State Department took the same view. Near the start of the

conflict, the Bureau of South Asian Affairs found that "[t]here is no functioning central

government [in Afghanistan]. The country is divided among fighting factions. . . . The Taliban

[is] a radical Islamic movement [that] occupies about 90% of the country"

Undersecretary of

State Paula J. Dobriansky said on October 29, 2001, that "young Afghans cannot remember a

time when their country really worked. There was a time

—

a little over 20 years ago - when

Afghanistan was a functioning state, a member of the world community. . . . Unfortunately it is

See A Look at the Taliban, USA Today, Sept. 30,

2001,

available at http://www.usatoday.com/news/

world/2001/thetaliban.htm (visited Jan. 10, 2002). Indeed, Pakistan had been the only country in the world that

maintained an embassy in Kabul; the overwhelming majority of States and the United Nations recognized exiled

President Burhanuddin Rabbani and his government as the country's legal authorities. See Taliban tactics move to

hostage ploy, Aug. 8, 2001, available at http://www.janes.com/regional news/asia pacific/news/jid/

jid010808_l_n.shtml (visited Oct 19,2001).

Secretary Rumsfeld Media Availability en Route to Moscow (Nov. 2, 2001), available at

http://www.yale.edu/lawweb/avalon/sept

l/dodbrief54,htm (visited Jan. 15, 2002).

Rumsfeld Says Taliban to Blame for Casualties (Oct. 29, 2001), available at http://www.usinfo.state.gov/topical

/pol/terror/01102905.htm (visited Jan. 15,2002).

Transcript: Rumsfeld Says Taliban Functioning As Military Force Only (Nov. 4,2001), available at

http:www.usinfo.state.gov/topical/pol/terror/0110403.htm (visited Jan. 15,2002).

Rumsfeld on Afghanistan Developments on "Fox News Sunday," (Nov. 12,2001), available at

http://www.usinfo.state.gov/topical/pol/terror/0111204.htm (visited Jan. 15,2002).

Background Note (October, 2001), available at http://www.state.gov/r/pa/bgn/index.cfm?docid==5380 (visited Jan.

10,

2002), prepared by the Bureau of South Asian Affairs. See also Reuters AlertNet - Afghanistan, Country

Profiles ("There are no state-constituted armed forces. It is not possible to show how ground forces' equipment has

been divided among the different factions."), available at

http://www.alennet.org/thefacts/countryprofiles/152478?version=l (visited Jan. 15, 2002).

now difficult to remember that functioning Afghanistan."

As recently as December 12, 2001,

the State Department's Office of International Information Programs, drawing on Coalition

Information Center materials and media reports, stated that both the Taliban and al Qaeda "are

terrorist organizations," and characterized the Taliban's leader, Mullah Omar, as "a terrorist."

Some international officials concur with the views of our Government. Lakhdar Brahimi,

for example, the United Nations mediator in Afghanistan and a former Algerian Foreign

Minister, described Afghanistan under the Taliban as a "failed state which looks like an infected

wound."

Tony Blair, the Prime Minister of Great Britain, on a visit to that country this month,

declared that "Afghanistan has been a failed state for too long and the whole world has paid the

price."

Based on the foregoing, it is apparent that the publicly-available evidence would support

the conclusion that Afghanistan, when largely controlled by the Taliban militia, failed some, and

perhaps all, of the ordinary tests of statehood. Nor do we think that the military successes of the

United States and the Northern Alliance change that outcome. Afghanistan was effectively

stateless for the relevant period of the conflict, even if after the Bonn Agreement it became a

State recognized by the United Nations, the United States, and most other nations.

The

President can readily find that at the outset of this conflict, when the country was largely in the

hands of the Taliban militia, there was no functioning central government in Afghanistan that

was capable of providing the most basic services to the Afghan population, of suppressing

endemic internal violence, or of maintaining normal relations with other governments. In other

words, the Taliban militia would not even qualify as the de facto government of Afghanistan.

Rather, it would have the status only of a violent faction or movement contending with other

factions for control of Afghanistan's territory, rather than the regular armed forces of an existing

state.

This would provide sufficient ground for the President to exercise his constitutional power

to suspend our Geneva III obligations toward Afghanistan.

C. Suspension Under International Law

Although the President may determine that Afghanistan was a failed State as a matter of

domestic law, there remains the distinct question whether suspension would be valid as a matter

Paula J. Dobransky, Afghanistan: Not Always a Battlefield (Oct. 29, 2001), available at

http://www.usinfo.state.gov/topical/pol/terror/01102908.htm (visited Jan. 15,2002).

The End of the Taliban Reign of Terror in Afghanistan (Dec. 12,2001), available at

http://www.usinfo.state.gov/topical/pol/terror/01121206.htm (visited Jan. 15,2002).

Rashid, supra, at 207.

Philip Webster, Blair's mission to Kabul, The Times of London, Jan. 8,2002, available at 2002 WL 4171996.

We do not think that the military successes of

the

United States and the Northern Alliance necessarily meant that

Afghanistan's statehood was restored before the Bonn agreement, if only because the international community,

including the United States, did not regard the Northern Alliance as constituting the government of Afghanistan.

United Nations Security Council Resolution 1378, 1 (2001), available at http://www.yale.edu/lawweb/

avalon/sept 11/unsecres 1378.htm (visited Nov. 19, 2001), expressed "strong support for the efforts of the

Afghan people to establish a new and transitional administration leading to the formation of a government"

(emphasis added); see also id. 3 (affirming that the United Nations should play a central role in supporting Afghan

efforts to establish a "new and transitional administration leading to the formation of a new government"). The

plain implication of this Resolution, which reflects the views of the United States, is that Afghanistan after the

Taliban did not have a government at that time.

of international law.

We emphasize that the resolution of that question, however, has no

bearing on domestic constitutional issues, or on the application of the WCA. Rather, these

issues are worth consideration as a means of justifying the actions of the United States in the

world of international politics. While a close question, we believe that the better view is that, in

certain circumstances, countries can suspend the Geneva Conventions consistently with

international law.

International law has long recognized that the material breach of a treaty can be grounds

for the party injured by the breach to terminate or withdraw from the treaty.

Under customary

international law, the general rule is that breach of a multilateral treaty by a State party justifies

the suspension of that treaty with regard to that State. "A material breach of a multilateral treaty

by one of the parties entitles . , . [a] party specially affected by the breach to invoke it. as a

ground for suspending the operation of the treaty in whole or in part in the relations between

itself and the defaulting State."

If Afghanistan could be found in material breach for violating

"a provision essential to the accomplishment of the object or purpose of the [Geneva

Conventions],"

suspension of the Conventions would have been justified.

We note, however, that these general rules authorizing suspension "do not apply to

provisions relating to the protection of the human person contained in treaties of a humanitarian

character, in particular to provisions prohibiting any form of reprisals against persons protected

by such treaties."

Although the United States is not a party to the Vienna Convention, some

lower courts have said that the Convention embodies the customary international law of treaties,

and the State Department has at various times taken the same view. The Geneva Conventions

must be regarded as "treaties of a humanitarian character," many of whose provisions "relate] to

the protection of the human person." Arguably, therefore, a decision by the United States to

suspend Geneva III with regard to Afghanistan might put the United States in breach of

customary international law.

In general, of course, a decision by a State not to discharge its treaty obligations, even when effective as a matter

of domestic law, does not necessarily relieve it of possible international liability for non-performance. See generally

Pigeon River Improvement, Slide & Boom Co, v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934).

See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

Notwithstanding Security Council Resolution 276, 1971 I.C.J. 16, 47, 98 (Advisory Opinion June

21,

1971)

(holding it to be a "general principle of law that a right of termination on account of breach must be presumed to

exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained

in treaties of a humanitarian character.... The silence of a treaty as to the existence of such a right cannot be

interpreted as implying the exclusion of a right which has its source outside of the treaty, in general international

law.")-

Vienna Convention on Treaties, art. 60(2)(b).

Id. art. 60(3).

Id. art. 60(5). The Vienna Convention seems to prohibit or restrict the suspension of humanitarian treaties if the

sole ground for suspension is material breach. It does not squarely address the case in which suspension is based,

not on particular breaches by a party, but by the party's disappearance as a State or on its incapacity to perform-its

treaty obligations.

Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 433 (2d Cir.), cert,

denied,

122 S. Ct 206 (2001); Moore,

supra, at 891-92 (quoting 1971 statement by Secretary of State William P. Rogers and 1986 testimony by Deputy

Legal Adviser Mary V. Mochary).

See Sir Ian Sinclair, The Vienna Convention on the Law of Treaties 191 (2d ed. 1984) (explaining intent and scope

of reference to "humanitarian treaties). Indeed, when the drafters of the Vienna Convention added paragraph 5 to

article 60, the Geneva Conventions were specifically mentioned as coming within it See Harris, supra, at 797.

In addition, the Geneva Conventions could themselves be read to preclude suspension.

Common article 1 pledges the High Contracting Parties "to respect and to ensure respect for the

present Convention in all circumstances" (emphasis added). Some commentators argue that this

provision should be read to bar any State party from refusing to enforce their provisions, no

matter the conduct of its adversaries. In other words, the duty of performance is absolute and

does not depend upon reciprocal performance by other State parties.

Under this approach, the

substantive terms of the Geneva Conventions could never be suspended, and thus any violation

would always be illegal under international law.

This understanding of the Vienna and Geneva Conventions cannot be correct. There is

no textual provision in the Geneva Conventions that clearly prohibits temporary suspension. The

drafters included a provision that precludes State parties from agreeing to absolve each other of

violations.

They also included careful procedures for the termination of the agreements by

individual State parties, including a provision that requires delay of a termination of a treaty, if

that termination were to occur during a conflict, until the end of the conflict.

Yet, at the same

time,

the drafters of the Conventions did not address suspension at all, even though it has been a

possible option since at least the eighteenth century.

Indeed, if the drafters and ratifiers of the

Geneva Conventions believed the treaties could not be suspended, while allowing for withdrawal

and denunciation, they could have said so explicitly and easily in the text.

A blanket non-suspension rule makes little sense as a matter of international law and

politics. If there were such a rule, international law would leave an injured party effectively

remediless if its adversaries committed material breaches of the Geneva Conventions. Apart

from its unfairness, that result would reward and encourage non-compliance with the

Conventions. True, the Conventions appear to contemplate that enforcement will be promoted

by voluntary action of the parties.

Furthermore, the Conventions provide for intervention by

"the International Committee of the Red Cross or any other impartial humanitarian organization

. . . subject to the consent of the Parties to the conflict concerned."

But the effectiveness of

these provisions depends on the good will of the very party assumed to be committing material

breaches, or on its sensitivity to international opinion. Likewise, the provision authorizing an

impartial investigation of alleged violations also hinges on the willingness of a breaching party to

permit the investigation and to abide by its result. Other conceivable remedies, such as the

imposition of an embargo by the United Nations on the breaching party, may also be

inefficacious in particular circumstances. If, for example, Afghanistan were bound by Geneva

Convention III to provide certain treatment to United States prisoners of war but in fact

materially breached such duties, a United Nations embargo might have little effect on its

behavior. Finally, offenders undoubtedly face a risk of trial and punishment before national or

international courts after the conflict is over. Yet that form of relief presupposes that the

offenders will be subject to capture at the end of the conflict - which may well depend on

See, e.g., Draper, The Red Cross Conventions, supra, at 8; see also Military and Paramilitary Activities In and

Against Nicaragua (Nicaragua v. United States), 76 I.L.R. at 448, 220.

See, e.g., Geneva Convention III, art. 131.

See, e.g., id., art. 142.

See Sinclair, supra, at 192.

See, e.g., the Geneva Convention

III,

art. 8; Geneva Convention IV, art. 9.

Geneva Convention III, art 9; Geneva Convention IV, art. 10.

whether or not they have been defeated. Reliance on post-conflict trials, as well as being

uncertain, defers relief for the duration of the conflict. Without a power to suspend, therefore,

parties to the Geneva Conventions would only be left with these meager tools to remedy

widespread violation of the Conventions by others.

Thus,

even if one were to believe that international law set out fixed and binding rules

concerning the power of suspension, the United States could make convincing arguments under

the Geneva Conventions

itself,

the Vienna Convention on Treaties, and customary international

law in favor of suspending the Geneva Conventions as applied to the Taliban militia in the

current war in Afghanistan.

Application of the Geneva Conventions As a Matter of Policy

We conclude this Part by addressing a matter of considerable significance for

policymakers. To say that the President may suspend specific provisions of the Geneva

Conventions as a legal requirement is by no means to say that the principles of the laws of

armed conflict cannot be applied as a matter of U.S. Government policy. There are two aspects

to such policy decisions, one involving the protections of the laws of armed conflict and the

other involving liabilities under those laws.

First, the President may determine that for reasons of diplomacy or in order to encourage

other States to comply with the principles of the Geneva Conventions or other laws of armed

conflict, it serves the interests of the United States to treat al Qaeda or Taliban detainees (or

some class of them) as if they were prisoners of war, even though they do not have any legal

entitlement to that status. We express no opinion on the merits of such a policy decision.

Second, the President as Commander in Chief can determine as a matter of his judgment

for the efficient prosecution of the military campaign that the policy of the United States will be

to enforce customary standards of the law of war against the Taliban and to punish any

transgressions against those standards. Thus, for example, even though Geneva Convention III

does not apply as a matter of law, the United States may deem it a violation of the laws and

usages of war for Taliban troops to torture any American prisoners whom they may happen to

seize. The U.S. military thus could prosecute Taliban militiamen for war crimes for engaging in

such conduct.

A decision to apply the principles of the Geneva Conventions or of others laws of war as

a matter of policy, not law, would be fully consistent with the past practice of the United States.

United States practice in post-1949 conflicts reveals several instances in which our military

forces have applied Geneva III as a matter of policy, without acknowledging any legal obligation

to do so. These cases include the wars in Korea and Vietnam and the interventions in Panama

and Somalia.

The President could, of course, also determine that it will be the policy of the United States to require its own

troops to adhere to standards of conduct recognized under customary international law, and could prosecute

offenders for violations. As explained below, the President is not bound to follow these standards by law, but may

direct the armed forces to adhere to them as a matter of policy.

Korea. The Korean War broke out on June 25, 1950, before any of the major State

parties to the conflict (including the United States) had ratified the Geneva Conventions.

Nonetheless, General Douglas MacArthur, the United Nations Commander in Korea, declared

that his forces would act consistently with the principles of the Geneva Conventions, including

those relating to POWs. General MacArthur stated: "My present instructions are to abide by the

humanitarian principles of the 1949 Geneva Conventions, particularly common article 3. In

addition, I have directed the forces under my command to abide by the detailed provisions of the

prisoner-of-war convention, since I have the means at my disposal to assure compliance with this

convention by all concerned and have fully accredited the ICRC delegates accordingly."

It should be noted, however, that deciding to follow Geneva III as a matter of policy

would allow the United States to deviate from certain provisions it did not believe were

appropriate to the current conflict. In Korea, for example, the United States did not fulfill the

requirement that it repatriate all POWs at the end of the conflict. Pursuant to the armistice

agreement, thousands of Chinese and North Korean POWs who did not wish to be repatriated

were examined by an international commission, and many eventually ended up in Taiwan.

Viet Nam. The United States through the State Department took the position that the

Geneva Convention III "indisputably applies to the armed conflict in Viet Nam," and therefore

that "American military personnel captured in the course of that armed conflict are entitled to be

treated as prisoners of war."

We understand from the Defense Department that our military

forces, as a matter of policy, decided at some point in the conflict to accord POW treatment (but

not necessarily POW status) to Viet Cong members, despite the fact that they often did not meet

the criteria for that status (set forth in Geneva Convention III, art. 4), e.g., by not wearing

uniforms or any other fixed distinctive signs visible at a distance.

Panama. The United States' intervention in Panama on December 20, 1989 came at the

request and invitation of Panama's legitimately elected President, Guillermo Endara.

100

The

United States had never recognized General Manuel Noriega, the commander of the Panamanian

Defense Force, as Panama's legitimate ruler. Thus, in the view of the executive branch, the

conflict was between the Government of Panama assisted by the United States on the one side

and insurgent forces loyal to General Noriega on the other. It was not an international armed

conflict between the United States and Panama, another State. Accordingly, it was not, in the

executive's judgment, an international armed conflict governed by common article 2 of the

Geneva Conventions.

101

Nonetheless, we understand that, as a matter of policy, all persons

Quoted in Joseph

Bialke, United Nations Peace Operations: Applicable Norms and the Application of the Law

of Armed Conflict, 50 A.F.L. Rev. 1, 63 n.235 (2001).

David M. Morriss, From War to Peace: A Study of Cease-Fire Agreements and the Evolving Role of the United

Nations, 36 Va. J. Int'l L. 801, 883-85 (1996).

Entitlement of American Military Personnel Held by North Viet-Nam to Treatment as Prisoners of

War

Under the

Geneva Convention of 1949 Relative to the Treatment of Prisoners of War, July 13, 1966, reprinted in John Norton

Moore, Law and the Indo-China War 635, 639 (1972).

100

See United States v. Noriega, 117 F.3d 1206, 1211

(11*

Cir. 1997).

101

See Jan E. Aldykiewicz and Geoffrey S. Com, Authority to Court-Martial Non-U.S. Military Personnel for

Serious Violations of International Humanitarian Law Committed During Internal Armed Conflict, 167 Mil. L. Rev.

74,

77 n.6 (2001). In United States v. Noriega, 808 F. Supp. 791,794 (S.D. Fla. 1992), the district court held that

the United States' intervention in Panama in late 1989 was an international armed conflict under (common) Article 2

the

Geneva Convention III, and that General Noriega was entitled to POW status. To the extent that the holding

captured or detained by the United States in the intervention

—

including civilians and members

of paramilitary forces as well as members of the Panamanian Defense Force - were treated

consistently with the Geneva Convention III, until their precise status under that Convention was

determined. A 1990 letter to the Attorney General from the Legal Adviser to the State

Department said that "[i]t should be emphasized that the decision to extend basic prisoner of war

protections to such persons was based on strong policy considerations, and was not necessarily

based on any conclusion that the United States was obligated to do so as a matter of law."

102

Interventions in Somalia, Haiti and Bosnia, There was considerable factual uncertainty

whether the United Nations Operation in Somalia in late 1992 and early 1993 rose to the level of

an "armed conflict" that could be subject to common article 3 of the Geneva Conventions,

particularly after the United Nations Task Force abandoned its previously neutral role and took

military action against a Somali warlord, General Aideed. Similar questions have arisen in other

peace operations, including those in Haiti and Bosnia. It appears that the U.S. military has

decided, as a matter of policy, to conduct operations in such circumstances as if the Geneva

Conventions applied, regardless of whether there is any legal requirement to do so. The U.S.

Army Operational Law Handbook, after noting that "[i]n peace operations, such as those in

Somalia, Haiti, and Bosnia, the question frequently arises whether the [laws of war] legally

applies," states that it is-"the position of the US, UN and NATO that their forces will apply the

'principles and spirit' of the [law of war] in these operations."

103

It might be argued, however, that the United States has conceded that Geneva III applied,

as a matter of law, in every conflict since World War II. The facts, as supplied by our research

and by the Defense Department, demonstrate otherwise. Although the United States at times has

declared in different wars that the United States would accord Geneva Convention III treatment

to enemy prisoners, there are several examples where the United States clearly decided not to

comply with Geneva III as a matter of law. Further, such a position confuses situations in which

the United States said it would act consistently with the Geneva Conventions with those in which

we admitted that enemy prisoners would receive POW status as a matter of

law.

Our conduct in

assumed that the courts are free to determine whether a conflict is between the United States and another "State"

regardless of the President's view whether the other party is a "State" or not, we disagree with it. By assuming the

right to determine that the United States was engaged in an armed conflict with Panama

—

rather than with insurgent

forces in rebellion against the recognized and legitimate Government of Panama

—

the district court impermissibly

usurped the recognition power, a constitutional authority reserved to the President. The power to determine whether

a foreign government is to be accorded recognition, and the related power to determine whether a condition of

statelessness exists in a particular country, are exclusively executive. See, e.g.. Baker v. Carr, 369 U.S. 186,212

(1962) ("[R]ecognition of foreign governments so strongly defies judicial treatment that without executive

recognition a foreign state has been called 'a republic of whose existence we know nothing.'... Similarly,

recognition of belligerency abroad is an executive responsibility....") (citation omitted); Kennett

Chambers, 55

U.S.

(14 How.) 38,50-51 (1852) ("[T]he question whether [the Republic of] Texas [while in rebellion against

Mexico] had or had not at that time become an independent state, was a question for that department of our

government exclusively which is charged with our foreign relations. And until the period when that department

recognized it as an independent state, the judicial tribunals ... were bound to consider... Texas as a part of the

Mexican territory."); Mingtai Fire & Marine Ins. Co. v. United Parcel Service, 177 F.3d 1142, 1145 (9th Cir.)

("[The Supreme Court has repeatedly held that the Constitution commits to the Executive branch alone the

authority to recognize, and to withdraw recognition from, foreign regimes"), cert,

denied,

528 U.S. 951 (1999).

Letter for the Hon. Richard L. Thomburgh, Attorney General, from Abraham D. Sofaer, Legal Adviser, State

Department at 2 (Jan. 31,1990).

103

Quoted in Bialke, supra, at 56.

Panama provides an important example. There, the United States never conceded that the forces

of Manuel Noriega qualified as POWs under the Geneva Convention, but did provide for them as

a policy matter as if they were POWs.

IV. Detention Conditions Under Geneva III

Even if the President decided not to suspend our Geneva III obligations toward Afghanistan,

two reasons would justify some deviations from the requirements of Geneva III. This would be

the case even if Taliban members legally were entitled to POW status. First, certain deviations

concerning treatment can be justified on basic grounds of legal excuse concerning self-defense

and feasibility. Second, the President could choose to find that none of the Taliban prisoners

qualify as POWs under article 4 of Geneva III, which generally defines the types of armed forces

that may be considered POWs once captured. In the latter instance, Geneva III would apply and

the Afghanistan conflict would fall within common article 2's jurisdiction. The President,

however, would be interpreting the treaty in light of the facts on the ground to find that the

Taliban militia categorically failed the test for POWs within Geneva Ill's terms. We should be

clear that we have no information that the conditions of treatment for Taliban prisoners currently

violate Geneva III standards, but it is possible that some may argue that our GTMO facilities do

not fully comply with all of the treaty's provisions.

A Justified Deviations from Geneva Convention Requirements

We should make clear that as we understand the facts, the detainees currently are being

treated in a manner consistent with common article 3 of Geneva III. This means that they are

housed in basic humane conditions, are not being physically mistreated, and are receiving

adequate medical care. They have not yet been tried or punished by any U.S. court system. As a

result, the current detention conditions in GTMO do not violate common article 3, nor do they

present a grave breach of Geneva III as defined in article 130. For purposes of domestic law,

therefore, the GTMO conditions do not constitute a violation of the WCA, which criminalizes

Only violations of common article 3 or grave breaches of the Conventions.

That said, some very well may argue that detention conditions currently depart from

Geneva III requirements. Nonetheless, not all of these deviations from Geneva III would amount

to an outright violation of the treaty's requirements. Instead, some departures from the text can

be justified by some basic doctrines of legal excuse. We believe that some deviations would not

amount to a treaty violation, because they would be justified by the need for force protection.

Nations have the right to take reasonable steps for the protection of the armed forces guarding

prisoners. At the national level, no treaty can override a nation's inherent right to self-defense.

Indeed, the United Nations Charter recognizes this fundamental principle. Article 51 of the U.N.

Charter provides that "[nothing in the present Charter shall impair the inherent right of

individual or collective self-defense if an armed attack occurs against a Member of the United

Nations." As we have discussed in other opinions relating to the war on terrorism, the

September 11 attacks on the Pentagon and the World Trade Center have triggered the United

States' right to defend

itself.

104

Our national right to self-defense must encompass the lesser

104

Memorandum for Alberto R. Gonzales, Counsel to the President, from Patrick

Philbin, Deputy Attorney

General, Office of Legal Counsel, Re: Legality of the Use of Military Commissions to Try Terrorists at 22-33 (Nov.

included right to defend our own forces from prisoners who pose a threat to their lives and

safety, just as the Nation has the authority to take measures in the field to protect the U.S. armed

forces. Any Geneva III obligations, therefore, may be legally adjusted to take into account the

needs of force protection.

The right to national self-defense is further augmented by the individual right to

self-

defense as a justification for modifications to Geneva III based on the need for force protection.

Under domestic law, self-defense serves as a legal defense even to the taking of a human life.

"[S]elf defense is . . . embodied in our jurisprudence as a consideration totally eliminating any

criminal taint.... It is difficult to the point of impossibility to imagine a right in any state to

abolish self defense altogether . . . .

As the U.S. Court of Appeals for the District of

Columbia Circuit has observed, "[more than two centuries ago, Blackstone, best known of the

expositors of the English common law, taught that 'all homicide is malicious, and of course,

amounts to murder, unless . . . excused on the account of accident or self-preservation . . . .'

Self-defense, as a doctrine legally exonerating the taking of human life, is as viable now as it was

in Blackstone's time . . . "

,06

Both the Supreme Court and this Office have opined that the use

of force by law enforcement or the military is constitutional, even if it results in the loss of

life,

necessary to protect the lives and safety of officers or innocent third parties.

107

Thus, as a matter

of domestic law, the United States armed forces can modify their Geneva III obligations to take

into account the needs of military necessity to protect their individual members.

Other deviations from Geneva III, which do not involve force protection, may still be

justified as a domestic legal matter on the ground that immediate compliance is infeasible.

Certain conditions, we have been informed, are only temporary until the Defense Department

can construct permanent facilities that will be in compliance with Geneva. We believe that no

treaty breach would exist under such circumstances. The State Department has informed us that

state practice under the Convention allows nations a period of reasonable time to satisfy their

affirmative obligations for treatment of POWs, particularly during the early stages of a

conflict.

1 8

An analogy can be drawn here to a similar legal doctrine in administrative law. For

6, 2001); Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General

Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty,

Special Counsel, Office of Legal Counsel, Re: Authority for

Use

of Military Force to Combat Terrorist Activities

Within

the United States at

2-3

(Oct. 17,2001).

105

Griffin

v. Martin, 785 F.2d 1172, 1186-87 & n.37 (4th Or. 1986), affd by an equally divided court, 795 F.2d 22

(4th

Cir.

1986) (en

banc),

cert:

denied,

480

U.S.

919 (1987).

106

United States

Peterson,

483

F.2d 1222, 1228-29 (D.C. Cir.) (footnote omitted), cert

denied,

414 U.S. 1007

(1973).

107

See

Tennessee

Garner,

471

U.S. 1,7, 11 (1985) (Fourth Amendment "seizure" caused by use of force subject

to reasonableness analysis); Memorandum to Files, from Robert Delahunty, Special Counsel, Office of Legal

Counsel, Re:

Use

Deadly

Force Against Civil Aircraft

Threatening

to Attack 1996 Summer Olympic Games (Aug.

19,

1996); United

States Assistance

Countries

that Shoot Down Civil Aircraft Involved

Drug Trafficking, 18

Op.

O.L.C. 148, 164 (1994) ("[A] USG officer or employee may use deadly force against civil aircraft without

violating [a criminal statute] if he or she reasonably believes that the aircraft poses a threat of serious physical harm .

.. to another person.").

During the India-Pakistan conflicts between 1965 and

1971,

prisoners were able to correspond with their

families, but there were "some difficulties in getting lists of all military prisoners"

—

"especially at the beginning of

the conflict." Allan Rosas,

The Legal Status

Prisoners

War

at 186(1976). Similarly, during the 1967 War in

the Middle East, Israeli authorities delayed access to Arab prisoners on the grounds that "all facilities would be

granted as soon as the prisoners were transferred to the camp at Atlith ... In the meantime, delegates had the

example, it is a well-established principle that, where a statutory mandate fails to specify a

particular deadline for agency action, a federal agency's duty to comply with that mandate is

lawfully discharged, as long as it is satisfied within a reasonable time. The Administrative

Procedure Act expressly provides that a "reviewing court shall . . . compel agency action

unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706 (emphasis added). Courts have

recognized accordingly that a federal agency has a reasonable time to discharge its

obligations.

109

Thus, "if an agency has no concrete deadline establishing a date by which it must

act,. . . a court must compel only action that is delayed unreasonably. . . . [W]hen an agency is

required to act—either by organic statute or by the APA—within an expeditious, prompt, or

reasonable time, § 706 leaves in the courts the discretion to decide whether agency delay is

unreasonable."

110

Here, Geneva III contains no strict deadlines for compliance. Indeed, it would be

illogical to require immediate compliance, particularly if a nation were suddenly attacked and

had no warning that POW facilities would be needed. Further, it might not be immediately

practicable, given the conditions in the field where POWs would first be detained, to provide

conditions that fully comply with Geneva III. Given that Geneva III has no mandated timetable,

the armed forces have a reasonable time to satisfy their obligations of treatment with regard to

POWs and are not guilty of breach when it is infeasible to achieve immediate compliance.

Status of Taliban Prisoners Under Article 4

Even if the President declines to suspend our obligations under Geneva III toward

Afghanistan, it is possible that Taliban detainees still might not receive the legal status of POWs.

Geneva III provides that once a conflict falls within common article 2, combatants must fall

within one of several categories in order to receive POW status. Article 4(A)(l)-(3) sets out the

three categories relevant here: i) members of the armed forces of a party to the conflict, along

with accompanying militia and volunteer forces; ii) members of militia or volunteer corps who

are commanded by an individual responsible to his subordinates, who have a distinctive sign

recognizable from a distance, who carry arms openly, and who obey the laws of war; and iii)

members of regular armed forces who profess allegiance to a government or authority that is not

recognized by the detaining power. Should "any doubt arise as to whether persons, having

committed a belligerent act and having fallen into the hands of the enemy," article 5 of Geneva

III requires that these individuals "enjoy the protections of the Convention until a tribunal has

determined their status. As we understand it, as a matter of practice prisoners are presumed to

have article 4 POW status until a tribunal determines otherwise.

Although these provisions seem to contemplate a case-by-case determination of an

individual detainee's status, the President could determine categorically that all Taliban prisoners

fall outside article 4. Under Article II of the Constitution, the President possesses the power to

opportunity to see some of the prisoners at the transit camp at El Quantara and Kusseima." Id. at 203 (citation

omitted). Although Israel was technically obliged under the Convention to provide access to Arab POWs,

immediate compliance with that obligation was infeasible.

109

Sierra Club

Thomas,

828 F.2d 783,794 (D.C. Cir. 1987).

110

Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999).

interpret treaties on behalf of the Nation.

111

He could interpret Geneva III, in light of the known

facts concerning the operation of Taliban forces during the Afghanistan conflict, to find that all

of the Taliban forces do not fall within the legal definition of prisoners of war as defined by

article 4. A presidential determination of this nature would eliminate any legal "doubt" as to the

prisoners' status, as a matter of domestic law, and would therefore obviate the need for article 5

tribunals.

We do not have, however, the facts available to advise your Department or the White

House whether the President would have the grounds to apply the law to the facts in this

categorical manner. Some of the facts which would be important to such a decision include:

whether Taliban units followed a recognizable, hierarchical command-and-control structure,

whether they wore distinctive uniforms, whether they operated in the open with their weapons

visible, the tactics and strategies with which they conducted hostilities, and whether they obeyed

the laws of war. If your Department were to conclude that the Afghanistan conflict demonstrated

that the conduct of the Taliban militia had always violated these requirements, you would be

justified in advising the President to determine that all Taliban prisoners are not POWs under

article 4.

It is important to recognize that if the President were to pursue this line of reasoning, the

executive branch would have to find that the Afghanistan conflict qualifies as an international

war between two state parties to the Conventions. Article 4 is not a jurisdictional provision, but

is instead only applied once a conflict has fallen within the definition of an international conflict

covered by common article 2 of the Conventions. At this point in time, we cannot predict what

consequences this acceptance of jurisdiction would have for future stages in the war on

terrorism.

Nonetheless, if the President were to make such a determination, the WCA still would not

impose any liability. As will be recalled, the WCA criminalizes either grave breaches of the

Geneva Conventions or violations of common article 3. If members of the Taliban militia do not

qualify as POWs under article 4, even though the conflict falls within common article 2's

jurisdictional provisions, then their treatment cannot constitute a grave breach under Geneva HI.

Article 130 of Geneva III states that a grave breach occurs only when certain acts are committed

against "persons . . . protected by the Convention." If the President were to find that Taliban

prisoners did not constitute POWs under article 4, they would no longer be persons protected by

the Convention. Thus, their treatment could not give rise to a grave breach under article 130, nor

constitute a violation of the WCA.

Further, if the President were to find that all Taliban prisoners did not enjoy the status of

POWs under article 4, they would not be legally entitled to the standards of treatment in common

article 3. As the Afghanistan war is international in nature, involving as it does the use of force

by state parties - the United States and Great Britain - which are outside of Afghanistan,

common article 3 by its very terms would not apply. Common article 3, as we have explained

earlier, does not serve as a catch-all provision that applies to all armed conflicts, but rather as a

111

Memorandum for John Bellinger, III, Senior Associate Counsel and Legal Adviser to the National Security

Council, from John C Yoo, Deputy Assistant Attorney General and Robert

Delahunty, Special Counsel, Office of

Legal Counsel, Re: Authority of the

President

to Suspend

Certain Provisions

of the ABM

Treaty

(Nov. 15, 2001).

specific complement to common article 2. Further, in reaching the article 4 analysis, the United

States would be accepting that Geneva Convention jurisdiction existed over the conflict pursuant

to common article 2. Common article 3 by its text would not apply, and therefore any violation

of its terms would not constitute a violation of the WCA.

V. Customary International Law

Thus far, this memorandum has addressed the issue whether the Geneva Conventions,

and the WCA, apply to the detention and trial of al Qaeda and Taliban militia members taken

prisoner in Afghanistan. Having concluded that these laws do not apply, we turn to the effect, if

any, of customary international law. Some may take the view that even if the Geneva

Conventions, by their terms, do not govern the treatment of al Qaeda and Taliban prisoners, the

substance of these agreements has received such universal approval that it has risen to the status

of customary international law. Customary international law, however cannot bind the executive

branch under the Constitution because it is not federal law. This is a view that this Office has

expressed before,

112

and is one consistent with the views of the federal courts,

113

and with

executive branch positions before the courts.

114

Although we are not currently aware whether

any detention conditions currently would violate customary international law, it should be clear

that customary international law would not bind the President.

A. Is Customary International Law Federal Law?

Under the view promoted by many international law academics, any presidential

violation of customary international law is presumptively unconstitutional.

115

These scholars

argue that customary international law is federal law, and that the President's Article II duty

under the Take Care Clause requires him to execute customary international law as well as

statutes lawfully enacted under the Constitution. A President may not violate customary

international law, therefore, just as he cannot violate a statute, unless he believes it to be

unconstitutional. Relying upon cases such as The Paquete Habana, 175 U.S. 677, 700 (1900), in

which the Supreme Court observed that "international law is part of our law," this position often

claims that the federal judiciary has the authority to invalidate executive action that runs counter

to customary international law.

116

112

See Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law

Enforcement Activities, 13 Op. O.L.C. 163 (1989).

113

See, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992).

See id. at 669-70; Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 935-36

(D.C.

Cir. 1988); Garcia-Mir v. Meese, 788 F.2d 1446,1453-55 (11th Cir.), cert,

denied,

479 U.S. 889 (1986).

" See, e.g., Michael J. Glennon, Raising the Paquete Habana: Is Violation of Customary International Law by the

Executive Unconstitutional?, 80 Nw. U. L. Rev. 321,325 (1985); Louis Henkin, International Law As Law in the

United States, 82 Mich. L. Rev. 1555,1567 (1984); Jules Lobel The Limits of Constitutional Power: Conflicts

Between Foreign Policy and International Law, 71 Va. L. Rev. 1071,1179

(1985);