Prisoners' protection questioned

0 Comments | Oakland Tribune, May 23, 2004 | by Douglas Jehl

WASHINGTON -- Presented last fall with a detailed catalog of abuses at Abu Ghraib prison, the U.S. military responded on Dec. 24 with a confidential letter asserting that many Iraqi prisoners were not entitled to the full protections of the Geneva Conventions.

The letter, drafted by military lawyers and signed by Brig. Gen. Janis Karpinski, emphasized the "military necessity" of isolating some inmates at the prison for interrogation because of their "significant intelligence value," and said that prisoners held as security risks could legally be treated differently from prisoners of war or ordinary criminals.

But the military insisted that there were "clear procedures governing interrogation to ensure approaches do not amount to inhumane treatment."

In recent public statements, Bush administration officials

have said that the Geneva Conventions were "fully applicable" in Iraq. That has put U.S.-run prisons in Iraq in a different category from those in Afghanistan and in Guantanamo Bay, Cuba, where members of al-Qaida and the Taliban have been declared unlawful combatants not eligible for protection.

However, the Dec. 24 letter appears to undermine administration assertions of the conventions' broad appli cation in Iraq.

Until now, the only known element of the Dec. 24 letter had been a provision described by a senior Army officer as having asserted that the Red Cross should not seek in the future to conduct no-notice inspections in the cellblock where the worst abuses took place.

The International Committee of the Red Cross had reported in November that its staff, in a series of visits to Abu Ghraib in October, had "documented and witnessed" ill treatment that "included deliberate physical violence" as well as verbal abuse, forced nudity and prolonged handcuffing in uncomfortable positions.

In congressional testimony last week, Lt. Gen. Lance Smith, the deputy commander of U.S. forces in the Middle East, asserted that the Dec. 24 response demonstrated that the military had fully addressed the Red Cross complaints.

But the three-page response did not address many of the specific concerns cited by the Red Cross, whose main recommendations included improving the treatment of prisoners held for interrogation.

Instead, much of the military's reply is devoted to presenting a legal justification for the treatment of a broad category of Iraqi prisoners, including hundreds identified by the United States as "security detainees" in a cellblock at Abu Ghraib and in another facility known as Camp Cropper on the outskirts of the Baghdad airport, where the Red Cross had also found abuses.

A different category of prisoner

Prisoners of war are given comprehensive protections under the Third Geneva Convention, while civilian prisoners are granted considerable protection under the Fourth Convention.

But under the argument advanced by the military, Iraqi prisoners who are deemed security risks can be denied the right to communicate with others, and perhaps other rights and privileges, at least until the overall security situation in Iraq improves.

The military's rationale relied on a legal exemption within the Fourth Geneva Convention.

"While the armed conflict continues, and where 'absolute military security so requires,' security detainees will not obtain full GC protection as recognized in GCIV/5, although such protection will be afforded as soon as the security situation in Iraq allows it," the letter says, using abbreviations to refer to the Article 5 of the Fourth Geneva Convention.

That brief provision opens what is, in effect, a narrow, three- paragraph loophole in the 1949 convention.

The Red Cross' standing commentary on the provision calls it "an important and regrettable concession to State expediency." It was drafted, during intense debate and in inconsistent French and English versions, to address the treatment of spies and saboteurs.

"What is most to be feared is that widespread application of the article may eventually lead to the existence of a category of civilian internees who do not receive the normal treatment laid down by the convention but are detained under conditions which are almost impossible to check," says the Red Cross commentary, which is posted on its Web site.

"It must be emphasized most strongly, therefore, that Article 5 can only be applied in individual cases of an exceptional nature."

The military's mistake

An authority on the laws of war, Professor Scott L. Silliman of Duke University, said that the assertions in the military's letter were highly questionable and that the military lawyers who drafted it may have misconstrued the law.

The category in which prisoners may be excluded from the protections of the Geneva Conventions that the letter cites, Silliman said, are for people who can be shown to be a continuing threat to the occupying force, not people who might have valuable intelligence.

"They may be high value assets but that does not necessarily make them security risks," he said. The provision cited in the letter provides that the protections could be suspended for people suspected of "activities hostile to the security" of a warring state or an occupying power.