U.S. negated inmate rights in Dec. letter

Military said many Iraqis not due full protections

Geneva Conventions loophole

`Intelligence value' said to justify approach

May 23, 2004|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - Presented last fall with a detailed catalog of abuses at Abu Ghraib prison, the U.S. military responded Dec. 24 with a confidential letter to a Red Cross official 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 L. 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."

Bush administration officials have said the Geneva Conventions were "fully applicable" in Iraq, putting 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. But the Dec. 24 letter appears to undermine administration assertions of the conventions' broad application in Iraq.

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.

The Associated Press reported last night that the commander of the military police company assigned to the Abu Ghraib prison has said he will testify that the top U.S. general in Iraq was present during interrogations at the prison and witnessed abuse.

The AP cited a Washington Post report that a military lawyer stated at a hearing April 2 that Capt. Donald J. Reese told him that Lt. Gen. Ricardo S. Sanchez and other senior military officers were aware of the abuse.

In congressional testimony last week, Lt. Gen. Lance L. 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 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 a legal justification for the treatment of a broad category of Iraqi prisoners, including hundreds identified as "security detainees" in a cellblock at Abu Ghraib and in a facility known as Camp Cropper on the outskirts of the Baghdad airport.

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 deemed security risks can be denied the right to communicate with others, and perhaps other rights and privileges.

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, referring to Article 5 of the Fourth Geneva Convention.

That brief provision opens a narrow, three-paragraph loophole in the 1949 convention. The Red Cross' commentary on the provision calls it "an important and regrettable concession to State expediency." It was drafted 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."

An authority on the laws of war, Scott L. Silliman of Duke University, said that the assertions in the military's letter were highly questionable.

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.

In testimony last week on Capitol Hill, Col. Marc Warren, a U.S. military lawyer in Iraq, defended harsh techniques available to U.S. interrogators there as not violating the Geneva Conventions. He said the conventions should be read in light of "various legal treatises and interpretations of coercion as applied to security internees."

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