OLC Memo re: status of detainees under international law (draft memo)

<p>This draft memo addresses the application of the Geneva Conventions to the conflicts with al Qaeda and the Taliban, in Afghanistan and in Iraq. The memo primarily analyzes which prisoners qualify as prisoners of war. The document concludes that al Qaeda members and the Taliban do not qualify, while people captured in Iraq &quot;before the end of occupation (June 28, 2004)&quot; do.&nbsp;[OLC Vaughn Index #137]</p>

Legal Memo
Sunday, August 23, 2009

COPY ri CI • - 1") NATIONAL L . . k til FO sfic Notice InZrrnaitxl. • ;6Efie;(} by i.iat:::ons yo,„: af it p=:.?c.inEf.aoth;t,a. .thowEaua,§w:::i::.1..maika..1 E or i :y vs:ithp3m:m., ;.s.43r.2 3;;A: 10 cimmrif, ExEiitod N?J,Is..1..:in,q IN* 3..W3:.: -;:..srai...rftE roiatin wiil iu4y with ;:s,tiy lawU t::8 U.B•t.E'td etrv3N37gml is:0 any iplautt:V..;4:::; d}s:::.0:-:1:1"$5 AcfseSq Lig* DATEENAMEE DATEENAME •WI¦ww..••••¦ ••¦¦•¦¦.&%.+Wo.W.V...***.V., Nyv DOJ OLC 001193 OR. ATITAN.EY GENERAL Q.1,1_1! kEGAL The. Geneva Conventions "apply o all cases of declared war or of any other aimed conflict which nm arise between two or more of the High Contracting Partietr and. to all cases or partial of total occupation of the territory of a High Contracting Party.' c The Om-ea-aims do not apply to our worldwide confact with al' Qaeda, which is not to Ugh Comracting Party." SeeosThandowv Rumiteld (D.C. Cir„rulv 3 The President has determined that the Conventions appiy to our conflict with the Tatiban because Afghaniqan is a "High Contracting Party,' o The Conventions apply to our conflict with the former regime in Iraq because that. eontlict is between II gh Contracting Parties'' and, prior to June 28, 2004, because the United States occupied Iraq. The Third Geneva Convention ("GPW") requires that notice be given of detentions of persons who qualify for prisoner of war statas under (WW art. 4 (POW's). O Notice is not required for al Qaeda detainees because al Qaeda is not a parEv to the Convention o Notice is mA required. for Taliban detainees because the Taliban, ass group, do not meet the criteria set forth n GPW art. 4 -for POW status. f;., Notice is required for detainees. associated with the armed forces of the former Iraqi regime who satisfV the requirements Set frath in UPW art. 4 . The Fourth Geneva Convention ('GC") requires that notice be given of detentions of persons incated in the territory of the detaining State or in occupied territory who Sathly the nationality and other requirements set firth in GC art. 4 ("protected .‘}ersons,"), In United States territory, nationals of Afghanistan, Iraq, and countries that do not have norMai hp matte representation in the (.!nited States f.e.g., Iran) May qualify for protected person status. Although the better view is that G-TNIO is not United States territory, litigation developments could call that conEIII' 0 quest on. o Persons captured. in Iraq before the end of occopttion (June 28, 2004) who remain in detention retain protected person status if they satisfy the reuniremenn of GC aft .. 4. United Nations Security Conotii IttS-thltiOn 1546, which authorizes the multinational force ("MNI"') to detain where "necessary for imperative reasons of security" and incorporates a commitment "to act in accordance with the Geneva Conventions, does not impose any notification obligation when the Geneva Conventions do not. DOJ OLC 001194 ET/ GENERAL FRAMEWORK En most circumstances involving captures and detentions toda:y. the Geneva Come ittinn5to IVO impose notification requirements on the United States. The Third Geneva Convention C".GPV")., which would require notice ibr POWs, does no iinoose notification requirements in mcia ciwurnstances relevant here. Notice is not required for al Qaeda detainees because a Qaeda is not a party to GTN: Notice is not required for Taliban detainees beeause they do "ut. quahfy for POW status, o Though probably not operationally significant, notice .would be required for persons associated with the armed fortes of the former Iraqi regime who qualify f'or POW status. The Fonrth Geneva Convention ("QC") does not impose ratification requirements in 1110A circumstances because the OCCUpation of Iraq ended. on June. 2.8, 2004, o Notice would he required. for persons captured in Iraq before the end of occupation (June 28, 2004) who qualify fbr protected person status. oEES. territory, notice may be required for detainees who arc nationals of Afghanistan, Iratb or countries brkbgnormal diplomatic re presentation in the U.S,. • United Nations Settlrity Commit Resolution 1546 does not impose any notffication obligation when the Geneva Conventions do not.. CONCLUSIONS • Except for some unusual situation.a., detention operations conducted putsuant to the De.partment of Defenses proposed policy would not require notiliention under the. Gonventimm • For eertain unusual eategotita of detainees., additional fact.--dependent analysis would be necessary to determine whether notification is 'required: Persons AS Weiated with the armed forces of the former Iraqi regime. Persona captured in Iraq before the end of occupation (June 2g., 2.004) • UG-C's restrictions for occupied. terfitoty still applied in Imo :, they would prohibit some conduct authorized under the. proposed policy, such as forcible trki,rmfers. or depoitations pwlecked pe:§som from 'rag. • It is therefore important to review statements of senior Administration official that may suggest that US. policy it to apply the substantive requirements of the Geneva Conventions, Adherence to such a policy might require notification and might olacc other substantive limitations tr-eatmerit01 detai ;lees. .7 ,13:11.7 E‘ DOJ OLC 001195