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http://www.msnbc.msn.com/id/6315313/<http://www.msnbc.msn.com/id/6315313/>


Detainees secretly taken out of Iraq

Practice called breach of Geneva Conventions

 

By Dana Priest

washingtonpost.com

Updated: 12:40 a.m. ET Oct. 24, 2004

At the request of the CIA, the Justice Department drafted a confidential memo 
that authorizes the agency to transfer detainees out of Iraq for 
interrogation - a practice that international legal specialists say 
contravenes the Geneva Conventions.

One intelligence official familiar with the operation said the CIA has used 
the March draft memo as legal support for secretly transporting as many as a 
dozen detainees out of Iraq in the last six months. The agency has concealed 
the detainees from the International Red Cross and other authorities, the 
official said.

The draft opinion, written by the Justice Department's Office of Legal 
Counsel and dated March 19, 2004, refers to both Iraqi citizens and 
foreigners in Iraq, who the memo says are protected by the treaty. It permits 
the CIA to take Iraqis out of the country to be interrogated for a "brief but 
not indefinite period." It also says the CIA can permanently remove persons 
deemed to be "illegal aliens" under "local immigration law." 

Some specialists in international law say the opinion amounts to a 
reinterpretation of one of the most basic rights of Article 49 of the Fourth 
Geneva Convention, which protects civilians during wartime and occupation, 
including insurgents who were not part of Iraq's military. 

The treaty prohibits the "[i]ndividual or mass forcible transfers, as well as 
deportations of protected persons from occupied territory . . . regardless of 
their motive."

The 1949 treaty notes that a violation of this particular provision 
constitutes a "grave breach" of the accord, and thus a "war crime" under U.S. 
federal law, according to a footnote in the Justice Department draft. "For 
these reasons," the footnote reads, "we recommend that any contemplated 
relocations of 'protected persons' from Iraq to facilitate interrogation be 
carefully evaluated for compliance with Article 49 on a case by case basis." 
It says that even persons removed from Iraq retain the treaty's protections, 
which would include humane treatment and access to international monitors.

During the war in Afghanistan, the administration ruled that al Qaeda 
fighters were not considered "protected persons" under the convention. Many 
of them were transferred out of the country to Guantanamo Bay and elsewhere 
for interrogations. By contrast, the U.S. government deems former members of 
Saddam Hussein's Baath Party and military, as well as insurgents and other 
civilians in Iraq, to be protected by the Geneva Conventions. 

Experts wary of memo's reasoning 
International law experts contacted for this article described the legal 
reasoning contained in the Justice Department memo as unconventional and 
disturbing.

"The overall thrust of the Convention is to keep from moving people out of 
the country and out of the protection of the Convention," said former senior 
military attorney Scott Silliman, executive director of Duke University's 
Center on Law, Ethics and National Security. "The memorandum seeks to create 
a legal regime justifying conduct that the international community clearly 
considers in violation of international law and the Convention." Silliman 
reviewed the document at The Post's request.

The CIA, Justice Department and the author of the draft opinion, Jack L. 
Goldsmith, former director of the Office of Legal Counsel, declined to 
comment for this article.

CIA officials have not disclosed the identities or locations of its Iraq 
detainees to congressional oversight committees, the Defense Department or 
CIA investigators who are reviewing detention policy, according to two 
informed U.S. government officials and a confidential e-mail on the subject 
shown to The Washington Post.

Administration defends policy
White House officials disputed the notion that Goldsmith's interpretation of 
the treaty was unusual, although they did not explain why. "The Geneva 
Conventions are applicable to the conflict in Iraq, and our policy is to 
comply with the Geneva Conventions," White House spokesman Sean McCormick 
said.

The Office of Legal Counsel also wrote the Aug. 1, 2002, memo on torture that 
advised the CIA and White House that torturing al Qaeda terrorists in 
captivity abroad "may be justified," and that international laws against 
torture "may be unconstitutional if applied to interrogations" conducted in 
the war on terrorism. Bush's aides repudiated that memo once it became public 
this June. 

The Office of Legal Counsel writes legal opinions considered binding on 
federal agencies and departments. Although the March 19 document obtained by 
the Post is stamped "draft" and was never finalized, said one U.S. official 
involved in the legal deliberations. Copies of the memo were sent to the 
general counsels at the National Security Council, CIA and department of 
state and defense.

"The memo was a green light," an intelligence official said. "The CIA used 
the memo to remove other people from Iraq."

Since the Sept. 11 attacks, the CIA has used broad authority granted in a 
series of legal opinions and guidance from the Office of Legal Counsel and 
its own general counsel's office to transfer, interrogate and detain 
individuals suspected of terrorist activities at a series of undisclosed 
locations around the world.

According to current and former agency officials, the CIA has a rendition 
policy that has permitted the agency to transfer an unknown number of 
suspected terrorists captured in one country into the hands of security 
services in other countries whose record of human rights abuse is well 
documented. These individuals, as well as those at CIA detention facilities, 
have no access to any recognized legal process or rights.

Abu Ghraib opened eyes 
The scandal at Abu Ghraib, and the investigations and congressional hearings 
that followed, forced the disclosure of the Pentagon's behind-closed-doors 
debate and classified rules for detentions and interrogations at Guantanamo 
Bay, Cuba, and in Afghanistan and Iraq. Senior defense leaders have 
repeatedly been called to explain and defend their policies before Congress. 
But the CIA's policies and practices remain shrouded in secrecy.

The only public account of CIA detainee treatment comes from soldier 
testimony and Defense Department investigations of military conduct. For 
instances, Army Maj. Gen. Antonio M. Taguba's report on Abu Ghraib criticized 
the CIA practice of maintaining "ghost detainees" - prisoners who were not 
officially registered and were moved around inside the prison to hide them 
from Red Cross teams. Taguba called the practice "deceptive, contrary to Army 
doctrine and in violation of international law." 

Gen. Paul J. Kern, who oversaw another Army inquiry, told Congress that the 
number of CIA ghost detainees "is in the dozens, to perhaps up to 100."

The March 19, 2004, Justice Department memo by Goldsmith deals with a 
previously unknown class of people - those removed from Iraq.

It is not clear why the CIA would feel the need to remove detainees from Iraq 
for interrogation. A U.S. government official who has been briefed on the 
CIA's detention practices said some detainees are probably taken to other 
countries because "that's where the agency has the people, expertise and 
interrogation facilities, where their people and programs are in place."

The 'ghost detainee'
The origin of the Justice Department memo related to the only publicly 
acknowledged ghost detainee, Hiwa Abdul Rahman Rashul, nicknamed "Triple X" 
by CIA and military officials.

Rashul, a suspected member of the Iraqi Al-Ansar terrorist group, was 
captured by Kurdish soldiers in June or July of 2003 and turned over to the 
CIA, which whisked him to Afghanistan for interrogation. 

In October, White House Counsel Alberto R. Gonzales asked the Office of Legal 
Counsel to write an opinion on "protected persons" in Iraq and rule on the 
status of Rashul, according to another U.S. government official involved in 
the deliberations.

Goldsmith, then head of the office, ruled that Rashul was a "protected 
person" under the Fourth Geneva Convention and therefore had to be brought 
back to Iraq, several intelligence and defense officials said. 

The CIA was not happy with the decision, according to two intelligence 
officials. They promptly brought Rashul back and suspended any other 
transfers out of the country. 

At the same time, when transferring Rashul back to Iraq, then CIA director 
George Tenet asked Defense Secretary Donald Rumsfeld not to give Rashul a 
prisoner number and to hide him from International Red Cross officials, 
according to an account provided by Rumsfeld during a June 17 Pentagon press 
conference. Rumsfeld complied. 

As a "ghost detainee," Rashul became lost in the prison system for seven 
months.

Rumsfeld did not fully explain the reason he had complied with Tenet's 
request or under what legal authority he could have kept Rashul hidden for so 
long. "We know from our knowledge that [Tenet] has the authority to do this," 
he said.

Rashul, defense and intelligence officials noted, had not once been 
interrogated since he was brought back into Iraq. His current status is 
unknown.

In the one-page October 2003 interim ruling that directed Rashul's return, 
Goldsmith also created a new category of persons in Iraq whom he said did not 
qualify for protection under the Geneva Conventions. They are non-Iraqis who 
are not members of the former Baath Party and who came to Iraq after the 
invasion. 

After Goldsmith's ruling, the CIA and Gonzales asked the Office of Legal 
Counsel for a more complete legal opinion on "protected persons" in Iraq and 
on the legality of transferring people out of Iraq for interrogation. "That 
case started the CIA yammering to Justice to get a better memo," said one 
intelligence officer familiar with the interagency discussion.

Michael Byers, a professor and international law expert at University of 
British Columbia, said that creating a legal justification for removing 
protected persons from Iraq "is extraordinarily disturbing."

"What they are doing is interpreting an exception into an all-encompassing 
right, in one of the most fundamental treaties in history," Byers said. The 
Geneva Convention "is as close as you get to protecting human rights in times 
of chaos. There's no ambiguity here." 

 © 2004 The Washington Post Company