"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."The mention of "illegal aliens" is interesting, as it's a possible catch-all clause. If they "suspect" you're an illegal alien under Iraqi law, I suppose you can be rousted. This may be significant as the US Government has declared that, unlike in Afghanistan, it considers the Geneva Conventions applicable to prisoners in Iraq. The only details we have about any of the so-called "ghost detainees", the prisoners held for "other government agencies" whose existence was revealed in the Abu Ghraibh torture investigation, regard the case of Hiwa Abdul Rahman Rashid.
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."
"Rashul, a suspected member of the Iraqi Al-Ansar terrorist group, was captured by Kurdish soldiers in June or July of 2003 and turned over to the CIA, which whisked him to Afghanistan for interrogation.We also know that some other prisoners, arrested in parts of the world as random as the Gambia, were shipped to Afghanistan for interrogation and then to Guantanamo, or indeed the other way round. How are these long-distance transfers being handled? Could this be why Viktor Bout's airlines are working for the US Government? It would offer the prospect of keeping them off the US Air Force's books and passenger manifests. Perhaps the bill could be buried in another contract - as was done to support China Air Transport, the forerunner of "Air America", during the 1950s. (CAT was given contracts to operate routine transport jobs such as delivering the Stars and Stripes, which were inflated to fund its secret activities.)
In October, White House counsel Alberto R. Gonzales asked the Office of Legal Counsel to write an opinion on "protected persons" in Iraq and rule on the status of Rashul, according to another U.S. government official involved in the deliberations.
Goldsmith, then head of the office, ruled that Rashul was a "protected person" under the Fourth Geneva Convention and therefore had to be brought back to Iraq, several intelligence and defense officials said. The CIA was not happy with the decision, according to two intelligence officials. It promptly brought Rashul back and suspended any other transfers out of the country.
At the same time, when transferring Rashul back to Iraq, then-CIA Director George J. Tenet asked Defense Secretary Donald H. Rumsfeld not to give Rashul a prisoner number and to hide him from International Red Cross officials, according to an account provided by Rumsfeld during a June 17 Pentagon news conference. Rumsfeld complied."