UM del - 2006-07 - Bilag 25: Redegørelse for faktuelle og retlige spørgsmål i tilknytning til danske styrkers tilbageholdelse og overladelse af personer i Afghanistan i 1. halvår 2002

THE VICE PRESIDENTTHE SECRETARY OF STATETRE SECRETARY OF DEFENSETHE ATTORNEY GENERALCHIEF OF STAFF TO THE PRESIDENTDIRECTOR OF CENTRAL INTELLIGENCEASSIST ANT TO THE PRESIDENT FOR NATIONALSECURITY AFF AIRSCHAIRMAN OF TRE JOINT CHIEFS OF STAFFHumane Treatment of Taliban and al Qaeda Detainees

Our recent extensive discussions regarding the status of al Qaeda and Talibandetainees confirm that the application of Geneva Convention Relative to theTreatment of Prisoners of Warof August 12, 1949, (Geneva) to the conflict withal Qaeda and the Taliban involves complex legal questions. By its terms, Genevaapplies to conflicts involving "High Contracting Parties," which can only bestates. Moreover, it assumes the existence of "regular" armed forces fighting onbehalf of states. However, the war against terrorism ushers in a new paradigm,one in which groups with bro ad, international reach commit horrific acts againstinnocent civilians, sometimes with the direct support of states. Our nationrecognizes 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 beconsistent with the principles of Geneva.Pursuant to my authority as commander in chief and chief executive of the UnitedStates, and relying on the opinion of the Department of Justice dated January 22,2002, and on the legal opinion rendered by the attomey general in his letter ofFebruary l, 2002, I hereby determine as folIows:a.

I accept the legal conclusion of the Department of Justice and determinethat none of the provisions of Geneva apply to our conflict with al Qaeda inAfghanistan or elsewhere throughout the world because, among otherreasons, al Qaeda is not a High Contracting Party to Geneva.I accept the legal conclusionof the attorney general and the Department ofJustice that I have the authority under the Constitution to suspend Genevaas between the Unit ed States and Afghanistan, but I decline to exercise thatauthority at this time. Accordingly, Ideterminethat the provisions ofGeneva will apply to our present conflict with the Taliban. I reserve theright to exercise the authority in this or future conflicts.I also accept the legal conclusion of the Department of Justice anddetermine that common Article 3 of Geneva does not apply to either al

Qaeda or Taliban detainees, because, among other reasons, the relevantconflicts 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 therecommendation of the Department of Justice, I determine that the Talibandetainees are unlawful combatants and, therefore, do not qualify asprisoners of war under Article 4 of Geneva. I note that, because Genevadoes not apply to OUTconflict with al Qaeda, al Qaeda detainees also do notqualify as prisoners of war.

Of COUTse, UTO values as a nation, values that we share with many nations in theworld, call for us to treat detainees humanely, including those who are not legallyentitled to such treatment. Our nation has been and will continue to be a strongsupporter of Geneva and its principles. As a matter of policy, the United StatesArmed Forces shall continue to tre at detainees humanelyand,to the extentappropriate and consistent with military necessity, in a manner consistent with theprinciples of Geneva.The United States will hold states, organizations, and individuals who gaincontrol of United States personnel responsible for treating such personnelhumanelyand consistent with applicable law.I hereby reaffirm the order previously issued by the secretary of defense to theUnited States Armed Forces requiring that the detainees be treated humanelyand,to the extent appropriate and consistent with military necessity, in a mannerconsistent with the principles of Geneva.I hereby direct the secretary of state to communicate my determinations in anappropriate manner to our allies, and other countries and internationalorganizations cooperating in the war against terrorism of global reach.

THE WHITE HOUSE