Author Archives: Michael Froomkin

MSNBC has the full text of the memo by White House Counsel Alberto Gonzales. Aside from its fundamental callousness and lack of moral outrage, there are odd things about it.

Gonzales rejects, without discussion, the concept that if armed people are not entitled to POW status they might still benefit from Geneva III, protecting civilians. Or might be subject to basic norms of decency and due process arising from the Constitution which creates the powers he and his boss exercise.

Even stranger is the odd discussion of the War Crimes statute, 18 U.S.C § 2441. Gonzales opines that one good reason for NOT treating detainees as POWs is that not giving them POW status lessens the chance of subsequent prosecutions against their US captors under the war crimes statute.

Why, you might ask, worry about prosecution at all? Is Gonzales aware of a plan to mistreat the detainees? It sure looks that way.

Gonzales's first argument against treating al Queda or Taliban fighters as POWs is that doing so would increase the danger of prosecution for “vague” offenses prohibited by the Geneva convention, namely “outrages upon personal dignity” and “inhuman treatment”. Reading those lines today, in the fullness of hindsight, it is very hard to escape the suspicion that Gonzales knew or suspected the sexual humiliation planned for Arab detainees.

Gonzales's second argument against treating al Queda or Taliban fighters as POWs is that”it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.” (Reading that today, it seems to mean “we might need to torture people”.)

Gonzales's third reason for treating is the legally weirdest of all:

“it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a solid basis in law that Section 2441 does not apply, which would create a solid defense to any future prosecutions.”

I'm scratching my head trying to figure out what this means, especially as Gonzales has a reputation for being pretty smart.

• Does Gonzales think that the “just following orders” defense will work? I hope not.

• Does Gonzales think that the courts would accept the President's determination on this as determinative? That's not totally implausible: a court might see the President's official determination as somehow being a political question and hence not reviewable. Except that I don't think any court would do this: the point of the Geneva conventions is to bring decisions like this into law, out of politics. Suppose Bush had ruled that unformed French troops were outside the convention — would that be unreviewable? Unlikely.

• So, on the assumption that Gonzales is smart, I'm puzzled. Does Gonzales have a bad staff?¹ Of course, it could be that Gonzales was making a political not a legal judgement: if the President OK'd it, prosecutors are less likely to prosecute. But to make this the centerpiece of your argument?

The more I look at this thing, the worse it smells.

¹ It cannot be that Gonzales has some crafty theory of qualified immunity up his sleeve. Qualified immunity protects a government official from civil liability so long as his/her “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” i.e. blocks lawsuits when the government actor could have had a reasonable belief that the act was lawful. Trouble is, the only immunity from criminal prosecution is that provided by a pardon. And § 2441 is a criminal not a civil statute. And the only part of §2441 (quoted below) that turns on intent at all is the part that refers to a person who “willfully kills or causes serious injury to civilians” in violation of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Device.

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