January – February 2002.        Broadly, 2002 kicks off with the administration in a certain amount of hot water. Front-page stories around the nation memorialize the spectacular collapse of Enron, with its links to the White House and to Cheney’s office, sometimes featuring the Enron links to Cheney chief of staff I. Lewis Libby individually. A spate of news articles with titles like “Some Bush officials sold Enron stock before bankruptcy” and “Some Bush officials got out in time” report accurately that the law forcing Rove and Libby to sell their Enron stock when they joined the government also saved them enormous losses, while longtime Enron employees are not allowed to withdraw and sell stock when the company undergoes a managerially-ordered reorganization. With the Enron flap ongoing, the apparent escape of Osama bin Laden from Tora Bora, Afghanistan, also generates criticism. Criticism about Enron and Osama eases up only when displaced in the news by Iraq, as the administration announces its “general consensus” in favor of “regime change.” During two extraordinarily busy months, the administration engages in heated efforts behind the scenes, to piggyback a war with Iraq onto the war in Afghanistan. Their efforts will become increasingly frenetic in the weeks leading up to the six-month anniversary of 9/11 in early March.

Jan. 1-17, 2002:

 
Jan. 9, 2002 – The Office of Legal Counsel in the Department of Justice submits a memorandum to William J. Haynes II, General Counsel to the Department of Defense. The memo, written by Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty, becomes the basis for the administration’s rejecting the Geneva Convention for captured alleged members of al-Qaeda and Taliban.

 
According to a legal analysis by Judge Evan J. Wallach, of the four parts of the Yoo-Delahunty memo,

The second part examines whether members al Qaeda can claim protection of the Geneva Conventions and concludes they can not. The third portion examines application of those treaties to members of the Taliban. It concludes nonapplicability because 1) it says "the Taliban was not a government and Afghanistan was not...a functioning State",  2) "the President has the constitutional authority to suspend our treaties with Afghanistan pending restoration of a legitimate government", and 3) "it appears...that the Taliban militia may have been ...intertwined with Al Qaeda" and thus on the same legal footing. Finally, the fourth part concludes that customary international law does not bind the President or restrict the actions of the United States military [under a constitutional analysis].

    Although the Memorandum is questionable on many grounds, both factual and legal, . . . For the present the reader should note the following:

    1) As long as there is a genuine issue of fact or law regarding the status of captured individual combatants who are members of the Taliban or Al Qaeda, the Third Geneva Convention of 1949 must apply, until properly otherwise determined. Article 5 of that Convention provides, in part, that "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (Emphasis added).

    2) The key to whether there exists any genuine issue of fact or law resides in the Yoo/Delahunty Memo which is the authoritative basis for all the actions which follows. Leaving aside the American constitutional arguments which present no bar to a delict in international law (see,e.g. the Dostler Case) 2, the argument for nonapplicability of Geneva III rests on the argument that as a matter of fact and law the Taliban did not constitute a de facto government. The short answer is that while the position is certainly arguable, it is also very reasonably arguable that the Taliban were the de facto government. They controlled a substantial geographic territory and population, enacted and enforced laws and mandates, carried on relatively complex military operations, appointed persons to governmental posts and received diplomatic recognition from several nations. The core validity of that point is admitted, albeit inadvertently, in . . . the 22 January, 2002, Memorandum from Jay Bybee to Alberto Gonzales and William Haynes . . .

 

 . . . there is indeed some doubt as to the status of the Taliban detainees. That, of course, triggers the requirements of Geneva Convention Article 5 for a competent tribunal to determine status, and mandates treatment as a POW until the tribunal is held. Indeed, Judge Bybee later discusses Article 5. See also, the references by Justice O'Connor in the plurality opinion in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004), to "the Taliban regime" and "the Taliban government," 124 S.Ct at 2635-2636, and her statement that "active combat operations against Taliban fighters apparently are ongoing in Afghanistan," id. at 2642, as well as Justice Souter's  concurrence in which he points to the Government's Brief saying "the Geneva Convention applies to the Taliban detainees." Id at 2658.

 

"Should any doubt arise as to whether persons, having committed a belligerent act, and having fallen into the hands of the enemy," article 5 of Geneva III requires that these individuals "enjoy the protections" of the Convention until a tribunal has determined their status. As we understand it, as a matter of practice prisoners are presumed to have article 4 POW status until a tribunal determines otherwise. Although these provisions seem to contemplate a case-by-case determination of an individual detainee's status the President could determine categorically that all Taliban prisoners fall outside article 4. Under Article II of the Constitution, the President posesses the power to interpret treaties on behalf of the Nation.He could interpret Geneva III, in light of the known facts concerning the operation of the Taliban...to find that all of the Taliban forces do not fall within the legal definition of prisoners of war as defined by article 4. A presidential determination of this nature would eliminate any legal "doubt" as to the prisoners' status, as a matter of domestic law, and would therefore obviate the need for article 5 tribunals . . .

    This argument presents an interesting question of domestic law as to whether a Commander in Chief can order a violation of international law by making a factual finding unsupported by independent evidence. Could one charged under the War Crimes Act (18 U.S.C. 2441) assert as a defense that as a matter of domestic law there was no grave breach, even though it was clearly a violation of international law? The answer to that proposition is beyond the scope of this discussion, although it appears questionable. What the argument does not do, however, for the same  Dostler Case) reasons above discussed, is present any defense to charges by any other Geneva III signatory charged to prosecute perpetrators of grave breaches wherever they may be found.

    3) No Article 5 tribunal (see, Army Regulation 190-8, Section 1-6) has been convened or held regarding any captured member of Al Qaeda3 or the Taliban.


The incarceration of purported al-Qaeda or Talibani without process of law, even aside from prison abuses later exposed, undercuts the ‘war on terror’ in world opinion while removing actions of the Executive branch from constitutional oversight. Most of the prisoners are subsequently released, usually to their home countries, although in 2007 at least two dozen are still ‘disappeared.’ It probably also has an early effect of facilitating the Bush-Cheney transition from Afghanistan to Iraq. Not only incarceration itself, but the threat of no-name incarceration in an undisclosed location, is a fearsome weapon in the hands of the U.S. government.

 
Jan. 10, 2002 – President Bush signs the monumental 2002 defense appropriations bill in the Rose Garden and issues a signing statement facilitating his ability to classify information:

 “The U.S. Supreme Court has stated that the President's authority to classify and control access to information bearing on national security flows from the Constitution and does not depend upon a legislative grant of authority.  Although 30-day advance notice can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must promptly establish special access controls on classified national security information under his constitutional grants of the executive power and authority as Commander in Chief of the Armed Forces. 

The executive branch shall construe section 8007 in a manner consistent with the constitutional authority of the President.”

The signing statement also enables him to transfer funds from one theater to another:

“Section 8072 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2002 may be used to transfer defense articles or services, other than intelligence services, to another nation or international organization for international peacekeeping, peace-enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of Congress of the planned transfer . . .

 . . . To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace-enforcement, or humanitarian assistance operations might require action of a kind covered by section 8072 sooner than 15 days after notification, section 8072 shall be construed in a manner consistent with my constitutional duty as Commander in Chief of the Armed Forces.”

The signing statement also overrides restrictions on the Executive ability to assign military personnel to functions such as legislative liaison:

“Provisos in section 8098 of the Act purport to limit during fiscal year 2002 the number of Department of Defense military and civilian personnel assigned to legislative affairs or legislative liaison functions and to mandate the percentage distribution of such personnel among various offices of the Department.   

In particular, section 8098 cannot constitutionally restrict the authority of the President to control the activities of members of the armed forces, including whether and how many members of the Armed Forces assigned to the office of the Chairman of the Joint Chiefs of Staff, the combatant commands, or any other element of the Department of Defense shall perform legislative affairs or legislative liaison functions.”

 
Jan. 16, 2002 – The White House amends Executive Order 13223, “Ordering the Ready Reserves of the Armed Forces to Active Duty and Delegating Certain Authorities to the Secretary of Defense and the Secretary of Transportation:

 “Sec. 2. Section 7 of Executive Order 13223 is deleted and revised to read as follows: "Based upon my determination under 10 U.S.C. 2201(c) that it is necessary to increase (subject to limits imposed by law) the number of members of the armed forces on active duty for the Department of Defense beyond the number for which funds are provided in the appropriation Act for the Department of Defense, which, by virtue of 14 U.S.C. 652, applies to the Department of Transportation with respect to the Coast Guard, the Secretary of Defense and the Secretary of Transportation may provide for the cost of such additional members under their respective jurisdictions as an excepted expense under section 11(a) of title 41, United States Code.”

The Amendment to Executive Order 13223 is released publicly the following day.

 
Jan. 17, 2002 – Rumsfeld meets with Gen. Franks again, asking again for an Iraq war plan that could be implemented more quickly.

 
Same day – President Bush meets with leaders of the Teamsters Union to discuss energy policy:

“And this energy bill that we're working on is a jobs bill. And when we explore for power, U.S. power, U.S. energy in ANWR, we're not only helping us become less dependent on foreign sources of crude oil and foreign sources of energy, we're creating jobs for American workers, jobs so that men and women can put food on the table.”

 
January is a busy month, and all signs point to Iraq. Corroborating this focus, the chronological White House web site for Afghanistan issues skips from 2001 directly to 2003, omitting all of 2002.