White House Memo from re: Humane Treatment of Al Qaeda and Taliban Detainees

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This White House memo discusses the treatment of detainees taken in the War on Terror and how they are to be classified and the determination of their legal status.

Doc_type: 
Non-legal Memo
Doc_date: 
Thursday, February 7, 2002
Doc_rel_date: 
Tuesday, June 7, 2005
Doc_text: 

UNCLASSIFIED .... RELEASED IN PART

'. B5
: i:i:C:ON'~/":DEN1IAL
'ORIG ACTION TO: L
THE WHITE HOUSE
COPIES TO:
S WASH INGTON
D

P February 7, 2002
M
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sIp MEMORANDUM FOR THE VICE PRESIDENT
S/ES THE SECRETARY OF STATE

.S/ES-IA
THE SECRETARY OF DEFENSE
··S!ES-S
THE ATTORNEY GENERAL -CHIEF OF STAFF TO THE PRESIDENT DIRECTOR OF CENTRAL INTELLIGENCE
ASSISTANT TO THE PRESIDENT FOR NA~T~I~O~N~lA~--------------------~
J~I
SECURITY AFFAIRS
IPS/sar
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
SUBJECT: Humane Treatment of al Qaeda and Taliban lJeta~neeSI
.-----'---------'1
1. Our recent extensive discussions regarding the status
of al Qaeda and Taliban detainees confirm that the appli­
cation of the Geneva Convention Relative to the Treatment
of Prisoners of War of August 12, '1949 {Geneva) to the
conflict with al Qaeda and the Taliban involves complex

I
legal questions. By its terms, Geneva applies to conflicts involving "High Contracting Part~es, " wh~ch can only be L..-_----._----I states.· Moreover, it assumes the existence of "regular" armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in
w.hich qroup~ with broad international reach commit horrific
II(J.. llf J •• ~...~jlW II dO, 'UI""/ lHIIWIHh(,Qw .1 .. j;liHI.,",NU 101' gw UijUUilJi]~"IU acts a9ainsC innocent civilians, sometimes with the di~ect support of states. Our Nation recognizes that this new paradigm --ushered in not by us,· but by terrorists requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.
2. Pursuant to my authority as Commander ~n Chief and Chief
Executive of the United States, and re~ying; on the opiriion
of the Department of. Justice dated January 22,· 2002, and on
the legal op~nion rendered by the Attorney General in his
letter of·February 1, 2002, I hereby determjne as follows:

a. :1 accept the legal conclusion of the Department of Justice and determine that none of the provisions oLGeneva· apply to our conflict with 'al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.
f I·.accept the legal conclusion of the Attorney General and the Department of Justice that I have the authQrlty under the Constitution to suspend Geneva as between " I the United States and Afghanistan, but I decline to'-.. I \
"'-, UNITED STATES DEPARTMENT OF STATE I 'lFIDENTIAL REVIEW AUTHORITY: WILLIAM E LANDFAI1k. 'on:· 1. 5 . (d) ,I DATE/CASE 10: 19 APR 2005 200303827 I
;ssify on;./ 02/07/12
, UNCLASSIFIED i
,
"
008-003068

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:'" ~ONF'IDENTIAL­
2
exercise that authority at this time. Accordingly, I
determine that the provisions of Geneva will apply to
our present conflict with the Taliban. ! reserve the
right to exercise this authority in this or future
conflicts.
c.
I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to "armed conflict not of an international character."

d.
Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, r determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not-apply to our conflict with al Qaeda, al Qaeda detainees also do not qualify as prisoners of war.

Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our Nation has been and w.ill continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humane~y and consistent with applicable law.
I hereby reaffirm the order previously issued by the
Secretary of Defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military
necessity, in a manner consistent with the principles
of Geneva.
-~
l
I he_reby direct the Secretary of State to communicate my

determinations in an appropriate-manner to our allies, and
other countries and international organizations cooperating
in the war against terrorism of global reach.
so
CONFIDENTIAL

DOS-003069

Doc_nid: 
6972
Doc_type_num: 
63