New York Times
January 27, 2002

Powell Asks Bush to Reverse Stand on War Captives


WASHINGTON -- Breaking with other cabinet officials, Secretary of State Colin L. Powell has asked President Bush to reverse himself and declare that the captives being held in Afghanistan and at Guantánamo Bay, Cuba, are entitled to protection by the Geneva Conventions on prisoners of war, administration officials said today.

In an unusual challenge to a presidential decision, Mr. Powell and his lawyers at the State Department have urged Mr. Bush to affirm that the international law of war governs the United States' treatment of all captives of the Taliban military and Al Qaeda terrorist network.

The Bush administration has classified the prisoners as "unlawful combatants," a category not entitled to Geneva protections. That view was reaffirmed in a memorandum on Friday from the White House counsel, Alberto Gonzales, to President Bush, summarizing the dispute. The memorandum was first reported today in The Washington Times.

Administration officials today confirmed the details of the memorandum, in which Mr. Gonzales advised the president that "arguments for reconsideration and reversal are unpersuasive." He said that the office of the general counsel at the Justice Department agreed with him.

In his memorandum, Mr. Gonzales said that Mr. Powell contends that the Geneva Conventions "does apply to both Al Qaeda and the Taliban," and added, "I understand, however, that he would agree that Al Qaeda and Taliban fighters could be determined not to be prisoners of war (P.O.W.'s) but only on a case-by-case basis following individual hearings before a military board."

But a senior State Department official said that Mr. Powell did not necessarily believe that a case-by- case determination is necessary, despite what is written in Mr. Gonzales's memorandum.

"Powell has never argued and never advocated that they should be designated as P.O.W.'s," the official said. "The question is whether the Geneva Convention applies to the prisoners before you decide what their technical status is."

Tribunals to determine the status of captives are called for not only in the Geneva Conventions but in the United States military's own regulations. Interrogation of the prisoners in Guantanamo began on Wednesday, without lawyers present.

One issue, human rights advocates said, is how interrogation is conducted. "If they are prisoners of war, there are restrictions on how they can be interrogated," said William F. Schulz, executive director of Amnesty International U.S.A. "P.O.W.'s are required to provide only name, rank and serial number. If these P.O.W.'s were in U.S. territory and were being interrogated about a war crime, they would have the right to an attorney. The fact that they are in Cuba makes that question ambiguous."

Reflecting the urgency of the matter, the president's national security adviser, Condoleezza Rice, asked members of the National Security Council to submit their views to her this morning in hopes of resolving the matter by Monday, according to a cover letter she wrote to Mr. Gonzales's memorandum.

The United States has faced international criticism over its handling of the prisoners, although the Bush administration has insisted that they are being treated humanely. A Congressional delegation visited the prison camp on Friday and its members said the treatment of the prisoners was humane.

Defense Secretary Donald H. Rumsfeld, who has vigorously defended the administration's approach, is to take a group of reporters, including several from foreign news organizations, to see the prisoners at the United States Naval Base at Guantánamo on Sunday.

From Mr. Powell's point of view, the change in policy would help ease relations with allied governments and partners in the antiterrorism coalition, including some states whose citizens are being held.

A senior State Department official said that Mr. Powell, a former chairman of the Joint Chiefs of Staff, had no fundamental objection to the treatment of the prisoners. But as the cabinet officer responsible for the United States' compliance with international treaties, Mr. Powell wanted a formal process to be followed in determining the prisoners' status, as the Geneva Conventions requires.

In fact, Mr. Powell was said to believe that in the end, most would not qualify as P.O.W.'s.

"The debate is not actually over whether these people are prisoners of war," this official said. "They are not. The debate is why they are not prisoners of war. However it gets decided, these guys are not going to get open canteens, not going to get paid a salary, not have the right to import scientific instruments."

Among other protections under international law, prisoners of war are not required to cooperate with interrogators, are allowed to elect their own leaders in prison camps, and are to be allowed to return home after the cessation of hostilities unless convicted of war crimes or other offenses.

"The position of the State Department is that the Geneva Conventions do apply," the State Department official said, "and it is in our political interests around the world to make sure the conventions do apply, but that these people don't qualify under the Geneva Conventions to be prisoners of war."

The president and his administration, particularly Mr. Rumsfeld and Attorney General John Ashcroft, have insisted that the United States is treating the prisoners humanely, in ways generally consistent with the handling of prisoners of war. But they have refused to confer that formal status to the captives, because it could interfere with eventual trials of some of them before military tribunals. Some allies are strongly opposed to military tribunals because they could result in their citizens being given the death penalty, which most other countries oppose.

Senator Jeff Sessions, Republican of Alabama, a member of the Senate Judiciary Committee who visited the Guantánamo camp on Friday, said a change in policy would make it harder to hold and to prosecute many Al Qaeda and Taliban captives, and that it would set a dangerous precedent.

As of Friday, there were 302 enemy captives being held in Afghanistan and 158 at a camp at Guantánamo Bay. The Bush administration has said that it considers them to be "unlawful combatants" not covered by the Geneva Conventions because they were terrorists beyond the control of any state, or at best militants in service to an illegitimate government.

Copyright © 2002, New York Times Company. All rights reserved.

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