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Context of 'October 2003: OLC Issues Opinion on Status of Protected Persons In Iraq'

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Iraqi national Hiwa Abdul Rahman Rashul, later to be nicknamed “Triple-X,” is captured by Kurdish soldiers on suspicion that he is a member of Al-Ansar al-Islam, a militant group operating in northern Iraq. (Priest 10/24/2004) He is then handed over to the CIA, which takes him outside of Iraq to a secret facility in Afghanistan. (Schmitt and Jehl 9/10/2004)

At Guantanamo, detainee Mohamed al-Khatani is given a tranquilizer, fitted with blackened goggles, and put on a plane. He is told he is being sent to a Middle Eastern country. What happens next is probably equivalent to the technique authorized under the description “false flag” by Defense Secretary Donald Rumsfeld’s April 16, 2003 memo on interrogation methods (see April 16, 2003). The plane returns to Guantanamo several hours later and he is taken to an isolation cell in the base’s brig where he is subjected to harsh interrogation procedures. He is led to believe that his interrogators are Egyptian national security operatives. In order to maintain the deception, the International Committee of the Red Cross (ICRC) is not permitted to visit Khatani during this time. (Lewis 1/1/2005)

A delegation from the International Committee of the Red Cross (ICRC) interviews a 61-year-old Iraqi who has been imprisoned in Camp Bucca. The elderly man tells the ICRC that at the time of his arrest, he was “tied, hooded, and forced to sit on the hot surface of what he surmised to be the engine of a vehicle….” The ICRC verifies his account noting that the presence of “large crusted lesions” on his buttocks were consistent with his allegation. (International Committee of the Red Cross 2/24/2004 pdf file)

White House Counsel Alberto R. Gonzales asks the Office of Legal Counsel (OLC) to provide an opinion on protected persons in Iraq and more specifically on the status of the detained Hiwa Abdul Rahman Rashul, an Iraqi prisoner being held in Afghanistan. In a one-page memo, Jack L. Goldsmith, head of the OLC, rules that Rashul is a “protected person” with rights under the Fourth Geneva Convention and therefore has to be returned to Iraq. Goldsmith also decides that non-Iraqis, who came to Iraq after the invasion, do not qualify for protection under the Geneva Conventions. (Priest 10/24/2004)

The CIA complies with the Office of Legal Counsel’s (OLC) opinion that Hiwa Abdul Rahman Rashul should be returned to Iraq (see October 2003). But CIA Director George Tenet asks Defense Secretary Donald Rumsfeld to see that Rashul is hidden from Red Cross survey teams and that he not be given a registration number. The secretary of defense complies with the request. On June 16, 2004, (Regan 6/17/2004) Rumsfeld will admit that he ordered Rashul to be hidden from the Red Cross in order to prevent the detainee’s interrogation from being interrupted. (CBS News 6/18/2004) For the next seven months, Rashul remains a so-called “ghost detainee” at the High Value Detention facility near the Baghdad airport at Camp Cropper. (Pound 6/21/2004)

Defense Secretary Donald Rumsfeld, at the request of CIA Director George Tenet, orders military officials in Iraq to keep an unnamed high-value detainee being held at Camp Cropper off the records. The order is passed down to Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, then to Gen. John P. Abizaid, the commander of American forces in the Middle East, and finally to Lt. Gen. Ricardo S. Sanchez, the ground commander in Iraq. “At each stage, lawyers reviewed the request and their bosses approved it,” the New York Times will report. “This prisoner and other ‘ghost detainees’ were hidden largely to prevent the International Committee of the Red Cross from monitoring their treatment, and to avoid disclosing their location to an enemy,” the newspaper will report, citing top officials. The prisoner—in custody since July 2003—is suspected of being a senior officer of Ansar al-Islam, an Islamic group with ties to al-Qaeda. Shortly after being captured by US forces, he was deemed an “enemy combatant” and thus denied protection under the Geneva conventions. Up until this point, the prisoner has only been interrogated once. As a result of being kept off the books, the prison system looses track of the detainee who will spend the next seven months in custody. “Once he was placed in military custody, people lost track of him,” a senior intelligence official will tell the New York Times. “The normal review processes that would keep track of him didn’t.” (Schmitt and Shanker 6/17/2004; Aldinger 6/17/2004; Fox News 6/17/2004)

The International Committee of the Red Cross (ICRC) complains in writing to Coalition Forces about the treatment of prisoners being held at Abu Ghraib prison (see October 2003). (US Department of the Army 3/9/2004; Lewis 5/11/2004; Associated Press 5/16/2004; Jehl and Schmitt 5/19/2004) The ICRC’s complaints are then discussed at high levels inside the Bush administration. “We knew that the ICRC had concerns, and in accordance with the matter in which the ICRC does its work, it presented those concerns directly to the command in Baghdad,” Powell will later recall on “Fox News Sunday.” “And I know that some corrective action was taken with respect to those concerns,” he adds. (Associated Press 5/16/2004)

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, advises White House counsel Alberto Gonzales in a classified memo that several “classes” of people are not given “protected” status if captured as hostiles in Iraq. Those people include: US citizens, citizens of a state not bound by the Geneva Conventions, citizens of a “belligerent State,” and members of al-Qaeda who are not Iraqi citizens or permanent Iraqi residents. The memo will be made public on January 9, 2009. (US Department of Justice 3/18/2004 pdf file; American Civil Liberties Union [PDF] 1/28/2009 pdf file)

Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to a number of general counsels: the State Department’s William Howard Taft IV, the Defense Department’s William Haynes, the White House’s chief counsel for national security John Bellinger, the CIA’s Scott Muller, and the White House’s Alberto Gonzales. The memo is a draft opinion that concludes the US government can withdraw “protected persons” (a classification of the Geneva Conventions) who are illegal aliens from Iraq to other countries to facilitate interrogation—in other words, the US can subject them to rendition. Goldsmith says the US can also rendition so-called “protective persons” who have not been accused of a crime and who are not illegal aliens in Iraq, as long as the custody is for a brief period. (US Department of Justice 3/19/2004 pdf file; Cross 2005; American Civil Liberties Union [PDF] 1/28/2009 pdf file) The memo correlates with another Justice Department memo rejecting “protected person” status for some who are detained by US forces in Iraq (see March 18, 2004).


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