Over the weekend, Dana Priest of the Washington Post reported on a rather disturbing memo
out of the Justice Department's Office of Legal Counsel regarding the legality of temporarily removing detainees from Iraq for interrogation purposes. These detainees have been euphemized as "ghost detainees" because they're generally not registered or reported to the Int'l Committee of the Red Cross, nor are they accorded any Geneva protections. Ms. Priest reported that the treatment of these detainees has been blessed at the highest levels, according to the legal memo
written by OLC chief Jack Goldsmith. [CIA officials subsequently defended
their actions, saying they were vetted and approved at the highest level.]
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. Pam Hess of UPI
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."
provides some additional analysis of the memorandum in a report filed Tuesday night. Suffice to say, the OLC interpretation runs contrary to what some international law specialists think about the Geneva Conventions.
... four legal experts closely monitoring the U.S. government's legal maneuvering in the "war on terror" say the same reasoning cannot apply to Iraq, and an entirely different section of the Geneva Conventions applies to people captured in Iraq.
The Fourth Geneva Convention protects all persons who find themselves in an occupied country, provided they are not citizens of the occupying power.
The convention prohibits the forced transfer or deportation of individuals or groups from occupied territory to the occupying power or any other country, regardless of the reason. Some transfers within the country are allowed, if the security of the population or military reasons "so demand," but they may not be removed from the occupied country except "when for material reasons it is impossible to avoid such displacement," the convention states.
Anyone moved within the occupied territory must be registered immediately with the International Committee of the Red Cross, according to Harvard international law professor Detlev Vagts, a former military judge advocate general.
* * *
"These provisions are a response to Nazi atrocities," Vagt wrote in a memo to his Harvard colleagues when the Washington Post first reported the Goldsmith brief. "'Mass transfers' refers to the trains that moved from Drancy to Auschwitz. 'Individual transfers' covers a Nazi program called 'Night and Fog' (Nacht und Nebel) in which resistance fighters (unlawful combatants) from France, etc. were secretly whisked to
German camps for 'special treatment.'
"One concludes from this that the transfers of detainees from Iraq, whether or not they are Iraqis, is forbidden. A second violation arises from the failure to notify the International Committee of the Red Cross (the Protecting Power) at once."
(As an aside
, Jack Goldsmith is reportedly headed to Harvard Law School soon, and these comments from Prof. Vagts may signal a bloody fight in the future between the members of the HLS faculty.)
: I've read the memo
itself, and I have a couple of points to add. First, this memorandum represents a quantum leap forward from the types of work product previously produced by OLC and the White House Counsel's office to justify the nullification of the Geneva Conventions and the use of extra-legal forms of interrogation (aka torture). Unlike those previous memos, this one contains none of the sweeping executive privilege language, which has since been thoroughly discredited by the Supreme Court and disavowed by the White House Counsel himself. In addition, I found the sourcing of this memo to be quite good — it relies on many conventional sources and seminal texts from the law of armed conflict to put together its argument.
But ultimately, that last point is also this memo's greatest flaw. In the executive branch, the DOJ's Office of Legal Counsel
is not supposed to make arguments
— it's supposed to provide counsel
. That means that its job is to serve as "honest broker" for legal issues within the executive branch — to opine on what the most likely outcome would be should any particular issue arise during the course of executive action, especially in the event that it's litigated. OLC serves no one when it gives the White House the answer it wants — or an answer that's too one-sided or argumentative. I don't think this memo adequately considers all of the other sides to the argument. Specifically, I think this memo fails to adequately consider the threat of ICC prosecution
, historic British and Iraqi law on the points it covers, and the application of the federal war-crimes statute and UCMJ to anyone who violates Geneva and/or AR 190-8
, the Army's regulation for dealing with prisoners. So while I think this memo is less flawed than the earlier memoranda
, I do still think it's flawed.