after-words.org

A new legal opinion by the Bush administration has concluded for the first time that some non-Iraqi prisoners captured by American forces in Iraq are not entitled to the protections of the Geneva Conventions, administration officials said Monday.

The opinion, reached in recent months, establishes an important exception to public assertions by the Bush administration since March 2003 that the Geneva Conventions applied comprehensively to prisoners taken in the conflict in Iraq, the officials said. They said the opinion would essentially allow the military and the C.I.A. to treat at least a small number of non-Iraqi prisoners captured in Iraq in the same way as members of Al Qaeda and the Taliban captured in Afghanistan, Pakistan or elsewhere, for whom the United States has maintained that the Geneva Conventions do not apply. The officials outlined the opinion on Monday in response to a report in The Washington Post over the weekend that the Central Intelligence Agency had secretly transferred a dozen non-Iraqi prisoners out of Iraq in the past 18 months, despite a provision in the conventions that bars civilians protected under the accords from being deported from occupied territories. [...] government officials said the new ruling could open the way for additional transfers on a broader scale, because the status of prisoners being held in Iraq is reviewed on a case-by-case basis. Under the administration opinion, the non-Iraqis who could be deemed exempt from Geneva Conventions would include suspected members of Al Qaeda or other terrorist organizations as well as other non-Iraqis believed to have traveled to the country after the invasion of March 2003 for the purpose of engaging in terrorism or joining in the insurgency. [...] It is possible that some of the prisoners transferred out of Iraq may have been handed over to friendly governments, like those of Egypt or Saudi Arabia, in a procedure known as rendition. Another possibility is that they were transferred to the secret American-run sites around the world that have been used since the Sept. 11 terror attacks to house the highest ranking Qaeda detainees, including Khalid Shaikh Mohammed, who is accused of being the mastermind of the attacks.

Such transfers have been used by American officials in the past three years in part to subject suspected members of Al Qaeda and the Taliban to interrogation practices harsher than those permitted under the Geneva Conventions or under American law. American officials have defended such practices, including a technique in which a prisoner is made to believe that he will drown, as essential to extract information that may be useful in preventing terrorist attacks.

As recently as May 2004, Defense Secretary Donald H. Rumsfeld reiterated in public testimony the administration's view that "everyone in Iraq who was a military person" as well as "the civilians or criminal elements" who were detained by the American authorities would be "treated subject to the Geneva Conventions."