When a Prisoner of War Isn’t a Prisoner of War

A politician is one that would circumvent God.

Shakespeare, Hamlet

Herewith a bright spot on the political front. Some things would be the same had George Bush been elected (he was) and the Democrats had captured the Senate and the House. (They didn’t.) One of the things that would be the same is the use of memoranda to sanction what an administration sensitive to human rights would deplore. (This one isn’t.)

One recent example of the use of memoranda to sanction conduct that might otherwise be censured was one written by attorney, now federal judge, Jay Bybee for Alberto Gonzales, counsel to Mr. Bush and soon to be attorney general. In it Mr. Bybee said that cruel, inhuman or degrading acts do not necessarily constitute torture. It is, said he, a question of the intent of the perpetrator. He said a coercive procedure cannot be considered torture unless it causes pain equivalent to that accompanying “serious physical injury, such as organ failure, impairment of bodily function or even death.” His memorandum proved enormously useful in analyzing what went on at Abu Ghraib prison which, without the benefit of Mr. Bybee’s analysis, might have seemed like torture. Indeed, the victims of that conduct, being unsophisticated and unable to read the memorandum (since it was written in English) may still believe they were being tortured. Now another memorandum has surfaced that makes it appear that, contrary to what we’ve been told, the Geneva Convention does not necessarily apply to everyone captured in Iraq.

According to a report in the Washington Post, in October 2003 the CIA asked the Justice Department to draft a memorandum dealing with “protected persons” in Iraq and specifically on the status of Abdul Rahman Rashul who had been taken to Afghanistan for interrogation. (The CIA had taken Rashul out of Iraq for interrogation and wanted to do the same with other prisoners so that they could be interrogated in countries not squeamish about torture. Why the torture being used at Abu Ghraib, which seemed quite cruel to those unsophisticated in the practice, was not sufficient to get the kind of information the CIA thought it needed is unclear.)

Article 49 of the Fourth Geneva Convention protects civilians during wartime and occupation and prohibits “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory . . . regardless of their motive.” Recognizing the importance of this provision, the author of the requested memorandum concluded that everyone in Iraq, including both Iraqi citizens and foreigners, was a protected person under the convention. Rashul was promptly returned to Iraq.

Unhappy with that ruling, the CIA and Mr. Gonzales asked for a more complete (and they undoubtedly hoped, more favorable) opinion on protected persons. A March 2004 memorandum gave it to them. It said prisoners could be taken out of the country for interrogation for a “brief but not indefinite period” and said that persons who are “illegal aliens” under “local immigration law” can be permanently removed. Some experts in international law called the memo’s conclusions a reinterpretation of Article 49 of the Geneva Convention. Indeed, in a footnote the memorandum observes that a violation of the provision banning removal of people is considered a “grave breach” of the accord and therefore a “war crime” under U.S. federal law. Although the memorandum gave the CIA what it wanted, its contents were apparently not shared with Mr. Rumsfeld. In a speech two months after the memorandum was written, Mr. Rumsfeld said that in the administration’s view “everyone in Iraq who was a military person” as well as “the civilians or criminal elements” captured by the Americans would be “treated subject to the Geneva Conventions.”

He did not explain the discrepancy between his perception and the conclusion of the memorandum nor did he explain why, as he disclosed in a press conference on June 17, 2004, he honored a request made by CIA director George Tenet that Rashul not be given a prisoner number and instead be hidden from International Red Cross officials. As a result of granting Mr. Tenet’s request, (an action that seemed to contradict what Mr. Rumsfeld said in May), Rashul was lost in the prison system for seven months.

Commenting on the 2004 memorandum Michael Byers, an international law expert at the University of British Columbia, said the memorandum was “extraordinarily disturbing.” He said: “What they are doing is interpreting an exception into an all-encompassing right, in one of the most fundamental treaties in history.” The Geneva Convention “is as close as you get to protecting human rights in times of chaos. There’s no ambiguity here.”

Someone forgot to tell that to the administration and the people who elected George Bush. Not that they’d care.

CHRISTOPHER BRAUCHLI is a Boulder, Colorado lawyer. His column appears weekly in the Daily Camera. He can be reached at: brauchli.56@post.harvard.edu


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