- The Washington Times - Saturday, January 26, 2002

Secretary of State Colin Powell has asked President Bush to reverse the president's position on al Qaeda and Taliban detainees and declare them prisoners of war under the Geneva Convention.

A four-page internal White House memorandum obtained yesterday by The Washington Times shows that Mr. Powell made the request and that the president's National Security Council plans to meet on the matter Monday morning.

"The secretary of state has requested that you reconsider that decision," White House Counsel Alberto Gonzales wrote yesterday in a memo to Mr. Bush. "Specifically, he has asked that you conclude that GPW [Geneva Convention II on the Treatment of Prisoners of War] does apply to both al Qaeda and the Taliban. I understand, however, that he would agree that al Qaeda and Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board."

The memo provides a rare glimpse of a major dispute inside the Bush White House on what has become one of the most contentious issues in the war in Afghanistan. Mr. Powell wants the president to reverse his position. But Mr. Gonzales and most, if not all, members of the president's national security team are urging him not to retreat, according to the memo.

Mr. Bush decided Jan. 18 that hundreds of Taliban and members of Osama bin Laden's al Qaeda army are detainees, not prisoners of war, and thus not subject to rights in the Geneva Convention. Human rights groups and some European politicians have protested the decision and have been especially critical of the living conditions for 158 detainees at the U.S. Naval Base in Guantanamo Bay, Cuba.

Administration sources last night expressed anger at Mr. Powell, whom they accused of bowing to pressure from the political left. They said that if Mr. Bush heeds his secretary of state's advice, the U.S. will have to provide detained terrorists with all sorts of amenities, including exercise rooms and canteens.

The four-page Gonzales memo to Mr. Bush comes with a signed cover sheet from Condoleezza Rice, the president's national security adviser. The cover page asks Vice President Richard Cheney; Mr. Powell; Defense Secretary Donald H. Rumsfeld; Attorney General John Ashcroft; CIA Director George Tenet; and Gen. Richard Myers, Joint Chiefs Chairman, to read Mr. Gonzales' memo and have responses to her by today at 11 a.m.

"After receiving your comments, we will prepare a final memorandum for presentation to the president Saturday afternoon," Miss Rice writes.

In his memo to the president, Mr. Gonzales lays out his and the Justice Department's reasons for recommending that Taliban and al Qaeda are not Geneva Convention prisoners of war. The White House counsel then lists what appear to be the State Department's arguments for reversal.

Mr. Gonzales then writes, "On balance, I believe that the arguments for reconsideration and reversal are unpersuasive."

The memo shows that Mr. Powell is not only running up against opposition at the White house, but also at the Justice Department.

Mr. Gonzales writes that the department's Office of Legal Counsel "has opined that, as a matter of international law and domestic law, GPW does not apply to the conflict with Al Qaeda. OLC has further opined that you have the authority to determine that GPW does not apply to the Taliban. As I discussed with you, the grounds for such a determination may include … a determination that the Taliban and its forces were, in fact, not a government, but a militant, terrorist-like group."

The White House counsel adds, "OLC's interpretation of this legal issue is definitive. … Nevertheless, you should be aware that the legal adviser to the secretary of state has expressed a different view."

In addition to Mr. Gonzales and Justice, Mr. Powell is likely to run into opposition from Mr. Rumsfeld. The defense secretary has vigorously defended the treatment of captives in Guantanamo and the decision not to place them under protection of the Geneva Convention. Mr. Rumsfeld often points out that the detainees are willing to commit suicide in order to kill Americans.

"It should be noted that your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers," Mr. Gonzales wrote. "Moreover, even if GPW is not applicable we can still bring war crimes charges against anyone who mistreats U.S. personnel. Finally, I note that our adversaries in several recent conflicts have not been deterred by GPW in their mistreatment of captured U.S. personnel, and terrorists will not follow GPW rules in any event."

Mr. Gonzales also argues that invoking the Geneva Convention would make it easier for adversaries to try to charge American servicemen with war crimes.

Noting that the president has called the war on terrorism "a new kind of war," Mr. Gonzales wrote, "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, script (i.e., advances of monthly pay), athletic uniforms, and scientific instruments."

Placing the detainees under the Geneva Convention would give them legal protections and new creature comforts. The United States would be restricted from conducting open-ended interrogations, for example, some of which have given the FBI new insights into how the al Qaeda terror network operates.

Yesterday at Guantanamo, Republican Sen. James M. Inhofe of Oklahoma said many of the detainees held there are likely to be returned to their homelands after investigators complete interrogations that began Wednesday.

Officials would not say how long the interrogations of the al Qaeda and Taliban fighters might last. It also was not clear whether the United States would demand that detainees be returned on the condition they be put on trial at home.

"I believe after the interrogation process there's going to be a distinction made as to whether, No. 1, these people should be sent to their country and, No. 2, be subjected to a military tribunal [at home] and, No. 3, whether there should be U.S. military justice or, in some rare occasions, the same as in what John Walker [Lindh] is receiving," Mr. Inhofe told the Associated Press.

Lindh, a U.S. citizen, will be tried in federal court on charges of helping the Taliban and al Qaeda target American civilians.

Mr. Inhofe was part of a delegation of eight representatives and three senators who visited the detention center yesterday. U.S. lawmakers have said they consider the detained fighters a danger to society who would kill again if set free.

Meanwhile in Afghanistan, U.S. Special Forces troops uncovered a large cache of Taliban weapons at a compound about 40 miles north of Kandahar after a battle with holdout Taliban fighters, the Pentagon said yesterday.

Military interrogators are questioning 27 Taliban fighters captured in Thursday's raid in Hazar Kadamon. Defense officials said at least 15 Taliban were killed in the operation and that one U.S. Special Forces soldier was wounded on the ankle.

The weapons were stored at several locations in the compound, which was located in a remote part of Afghanistan, he said. The compound had three sets of buildings, one of which had a fence around it.

Rear Adm. John Stufflebeem, deputy director of operations for the Joint Staff, said the total number of detainees from Afghanistan is now 460 302 in Afghanistan and 158 in Cuba.

Bill Gertz contributed to this report.

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