U.S. Liability Key Concern in '02 Debate on Detainees

A furious debate erupted in January 2002 between the State Department and the Justice Department over the type and degree of human rights protections available to fighters picked up in the hundreds by U.S. forces in Afghanistan.

The State Department said that, as a matter of law, soldiers in the Taliban forces associated with the country's leadership were protected by the Geneva Conventions. But the Justice Department, arguing for those at the Pentagon who sought more latitude in the use of tough interrogation techniques, said the Taliban fighters were not entitled to those protections.

While the contours of this debate have been known for some time, one of the internal administration memos revealed yesterday by the administration makes clear for the first time the preeminent concern of those who supported the Justice Department's position, which was subsequently embraced in part by President Bush.

The memo, amounting to 12 crisp paragraphs written by Attorney General John D. Ashcroft and sent on Feb. 1, 2002, to Bush, warned in stark terms that if the president sided with the State Department, American officials might wind up going to jail for violating U.S. and international laws.

This anxiety about eventual criminal prosecution under a series of strict laws barring torture or cruel and inhumane treatment evidently lay beneath much of the administration's debate over the limits on interrogation at the outset of the post-9/11 war on terrorism, the documents released yesterday suggest.

While on the one hand, some military officials wanted maximum flexibility to pressure stubborn detainees into spilling what they knew, they also wanted to be assured of immunity from criminal sanctions if they pushed beyond traditional interrogation tactics to the edge of what could be considered torture.

This balancing act was at the heart of the administration's protracted reviews in 2002 and 2003 -- at the State Department, the Pentagon, the Justice Department and the White House -- of what the legal standards were for handling detainees and what the implications would be for those who took part in interrogations and in setting U.S. policy.

The State Department had argued that international law required that members of the Taliban militia receive the protections of the Geneva Conventions, including possible status as enemy prisoners of war, and that to decide anything else would undermine similar protections guaranteed under the law to captured U.S. military personnel.

Ashcroft, arguing for his department's interpretation of the law, said that if Bush sided with Justice, the decision would "provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules." A U.S. law approved in 1996, he noted, makes such violations a domestic crime.

A decision to support the State Department's view, Ashcroft told the president, would "carry higher risk of liability, criminal prosecution, and judicially-imposed conditions of detainment," meaning that courts might wind up dictating precisely how detainees should be treated or even ordering their peremptory release.

The struggle between the State and Justice departments over the degree of legal protections owed to Taliban fighters provoked the administration's first major effort to parse the law and fix the limits on what it could do. These issues had gone largely unexplored for six years -- since Congress had written legislation making torture a domestic crime subject to the death penalty.

But Pentagon and Justice Department officials, feeling pressured to extract intelligence from detainees who were proving adept at resisting traditional interrogation methods, sought a major reexamination of the laws after the terrorist attacks on the United States. They strove throughout their deliberations to find and preserve as much latitude as they could under those laws.

In the end, Bush decided he had the right to suspend the application of the Geneva Conventions' protections to Taliban militia members but opted not to do so; at the same time, he declared they were "unlawful combatants" and not prisoners of war, making them eligible for more aggressive interrogation techniques.

"Our nation recognizes that this new paradigm -- ushered in not by us, but by terrorists -- requires new thinking in the law of war," Bush said in a Feb. 1, 2002, memo on his decision. Secretary of Defense Donald H. Rumsfeld subsequently approved -- and then rescinded -- a series of tough interrogation techniques for unlawful combatants, which wound up being used not only on Taliban members but also on Iraqis in 2003.