Washington ? The confidential Justice Department memos criticized by Democrats as laying the legal foundation for Iraqi prisoner abuses were aimed mainly at showing that international treaties banning torture do not apply to al-Qaida and Taliban prisoners, Bush administration officials say.

The department’s lawyers concluded that Taliban and al-Qaida fighters are not protected by the Geneva Conventions because they do not satisfy four main conditions of the treaty itself. Those include requirements to obey laws of war, wear insignia recognizable from a distance and operate under the command of a responsible individual.

Iraqi prisoners are protected under the treaty partly because Iraq is a participating nation in the Geneva Conventions and the United States is an occupying power, a Justice Department official wrote Sen. Patrick Leahy, D-Vt.

William Moschella, assistant attorney general for legislative affairs, said in a letter released Wednesday that despite this important difference, President Bush early in the Afghanistan conflict issued orders that al-Qaida and Taliban prisoners be treated humanely and consistently with Geneva Conventions principles.

The letter was the administration’s latest and most detailed attempt to address increasing criticism from congressional Democrats and human rights activists about what they consider a concerted effort to circumvent U.S. and international laws against torture during the fight against terrorism.

Policy merely discussed

A series of government lawyers’ memos, many of them still secret but leaked to the media this week, said the president had the legal authority to allow torture of detainees during interrogations. Administration officials, however, said such a policy never was adopted.

Democrats and human rights activists seized on the memos as evidence the administration condoned mistreatment.

The conclusions of a March 6, 2003, Pentagon memo that has been made public “are completely at odds with everything Congress has been told about our interrogation procedures, and it raises questions as to whether these arguments contributed to the mistreatment of prisoners in U.S. custody,” said Rep. Jane Harman of California, senior Democrat on the House Intelligence Committee.

Harman added that the “extraordinary legal argument” that al-Qaida and Taliban detainees were not covered by the Geneva Conventions had never been described for her during congressional oversight hearings or on three visits she made to Navy prison camp at Guantanamo Bay, Cuba, where more than 600 such detainees are held.

Moschella wrote that the memos constituted proper legal advice to the president about laws regarding torture and about interpretations of international treaties.

“We first want to reject categorically any suggestion that the Department of Justice has participated in developing policies that permit unlawful conduct,” the letter says. “The department has done no such thing.”

The letter says U.S. officials cannot avoid legal liability for torture by “colluding with officials from other governments” that do approve of harsh interrogation methods. In fact, Moschella said, that would be considered conspiracy to commit torture and could be prosecuted under criminal law.

Presidential discretion

Yet the letter does not address one of the most contentious assertions in the March 6 memo: that the president, acting as commander in chief, enjoys such “complete discretion” during wartime that U.S. criminal anti-torture statutes may not apply.

“Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield,” the memo says.

Said House Minority Leader Nancy Pelosi, D-Calif.: “The notion that the law is whatever the president determines it to be is so contrary to our Constitution and our experience as a nation that President Bush should have rejected it out of hand.”