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These conventions and these rules are in place for a reason because
you get on a slippery slope and you don't know where to get off," Sen.
John McCain, R-Ariz., told ABC's "This Week." "The thing that
separates us from the enemy is our respect for human rights," he said.
Washington Post
October 24, 2004
Memo Lets CIA Take Detainees Out of Iraq
Practice Is Called Serious Breach of Geneva Conventions
By Dana Priest
Washington Post Staff Writer
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 Committee of
the 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 the naval base in
Guantanamo Bay, Cuba, 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.
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.
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. President 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. The March 19 document obtained by
The Post is stamped "draft" and was not finalized, said one U.S.
official involved in the legal deliberations. However, the memo was
sent to the general counsels at the National Security Council, the CIA
and the departments 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, 2001, 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.
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 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 instance, 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
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"Almost no one disagrees with these basic facts: that
Saddam Hussein is a tyrant and a menace; that he has
weapons of mass destruction and that he is doing everything
in his power to get nuclear weapons; that he has supported
terrorists..."
--John Edwards October 10, 2002
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