On January 22, 2002, The U.S. Department of Justice issued a document to White House Counsel Alberto Gonzalez, and Department of Defense Counsel William J. Hynes on the "Application of Treaties and Laws to Al Qaeda and Taliban Detainees." The document concluded that existing rules on detainees do not necessarily apply to Al Qaeda or Taliban members:
You have asked for our Office's views concerning the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. In particular, you have asked whether certain treaies forming part of the laws of armed conflict apply to the conditions of detention and the procedures for trial of members of al Qaeda and the Taliban militia. We conclude that these treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We durther conclude that the President has sufficient grounds to find that these treaties do not protect members of the Taliban militia. This memorandum expresses no view as to whether the President should decided, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners.
Al Qaeda and Taliban are not Prisoners-of-War Argument
The primary argument put forth in the Memo was that the Taliban and al Qaeda are not "prisoners-of-war" and therefore Geneva Conventions on the treatment of POWs don't apply to them. The Memo analyzed the U.S. War Crimes Act (WCA), which incorporates elements Geneva Convention prohibitions on torture of prisoners of war.
In particular, the Memo discusses Article 3 of the 1949 Geneva Conventions, which governs armed conflicts between parties who may not have signed the Conventions. This clause prohibits the torture of those captured in such conflicts. The Memo argues that Article 3 was intended to cover situations of Civil War, but that there is no part of the Geneva Conventions that addresses hostilities between non-State actors and States.
Presidential Discretion to Suspend Geneva Conventions
The 2002 Memo explicitly says that it doesn't recommend any particular Presidential action. This is a little disingenuous. There are a number of place in the 37 page document where justifications for their suspension are supplied. The authors of the document do not discuss why it might be inadvisable on legal grounds to suspend U.S. adherence to Geneva Convention III and U.S. law.
The basic legal scaffolding on which the Memo's authors build their argument is that: (1) War is an event that takes place between two sovereign states; (2) Prisoners of War, therefore, are fighters captured in war who are citizens of the enemy state; (3) Because Al Qaeda is not a state, its captured members don't warrant POW status. The Taliban, who were the legal government of Afghanistan before its 2002 fall, require some more complex reasoning that suggests that Afghanistan was a dysfunctional or failed state:
In the case of the Taliban, the Memo provides that:
The President has the constitutional authority to temporarily suspend our treaty obligations to Afghanistan under the Geneva Conventions . . .In particular, he may determine that Afghanistan was not a functioning State, and therefore that the Taliban militia was not a government, during the period in which the Taliban was engaged in hostilities against the United States and its allies. Afghanistan's status as a failed State is sufficient groiund alone for the President to suspend Geneva III, and thus to deprive members of the Taliban militia of POW status. The Presdient's onstitutional power to suspend performance of our treaty obligations with respect to Afghanistan is not restricted by international law.
In the case of Al Qaeda, the Memo's authors argue that:
…Geneva III dos not apply to the al Qaeda terrorist organization. Therefore, neither the detention nor trial of al Qaeda fighters is subject to Geneva III (or the WCA). Three reasons … support this conclusion. First, al Qaeda is not a State and thus cannot receive the beneifits of a State party to the Conventions. Second, al Qaeda members fialr to satisfy the eligiblitiy requirement for treatment as POWS under Geneva Convention III. Third, the nature of the conflict precludes application of common article 3 of the Geneva Conventions.