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Legal, Policy, Moral Issues In Iraq Prisoner Abuse

The Iraqi interior minister said Thursday only seven of the prisoners showed signs of abuse and they "are the most threatening kinds of terrorists." The ministry has launched an investigation into the incident.

Washington (UPI) Nov 17, 2005
The U.S. Army intervened last week to stop the apparent abuse of Iraqi prisoners, offering a sharp contrast to a similar situation last year and raising complicated legal question about the nature of the American occupation of Iraq.

It also highlights a policy schizophrenia with regard to the treatment of detainees. While the United States is condemning the abuse of Iraqi prisoners, the White House continues to lobby for an exemption for the CIA from a ban on torture.

At the same time, the laws of land warfare require U.S. forces to stop willful and unnecessary physical violence against prisoners.

Soldiers led by U.S. Brig. Gen. Karl Horst, deputy commander of Third Infantry Division, went to an Iraqi Interior Ministry facility Sunday in search of a 15-year old the military believed was being illegally held. The Americans were denied entry to the facility until Horst called the minister of the interior, who ordered his forces to allow Horst inside, a U.S. military spokesman told reporters Thursday.

In the facility were 169 prisoners, some of whom appeared to have been abused, malnourished and mistreated, a U.S. military official said Thursday. Horst's troops took control of the ministry building and the prisoners, who were given medical treatment.

The Iraqi interior minister said Thursday only seven of the prisoners showed signs of abuse and they "are the most threatening kinds of terrorists." The ministry has launched an investigation into the incident.

"The Iraqi detainee issue highlights a real quandary: It's one thing to deal with abuse by U.S. soldiers, but what do you do about abuse of Iraqis by Iraqis?" a military officer in Iraq, who is also a lawyer told United Press International.

"Theoretically, the government of Iraq has sovereignty, and is able to treat its citizens as it wishes. What are the obligations of the U.S. government to step in and do something? As of Jun. 28, 2004, we're no longer an occupying power under the 4th Geneva Convention. So what do you do? It's a tough legal nut to crack."

A year and a half ago, the legal nut was cracked in quite a different way.

In June 2004 members of the Oregon National Guard witnessed what they believed to be detainee abuse at an Interior Ministry facility in Baghdad, according to a written account reported last year by the Oregonian newspaper. A soldier in an observation post who could see over the outer wall of the facility saw "men in plainclothes beat blindfolded and bound prisoners."

The team of entered the facility and found dozens of prisoners who claimed they had been beaten and denied food and water, as well as equipment that could be used for torture -- metal rods, rubber hoses and chemicals. Some prisoners had welts and bruises, the report said.

The team disarmed the Iraqi guards, unshackled the prisoners and administered first aid. An American lieutenant colonel on the scene contacted his headquarters for further instructions. He was told to return the prisoners to their jailers and to withdraw.

The June 2004 incident occurred just a day after the United States had officially relinquished sovereignty to Iraq. Confiscating the prisoners, even to save them, would embarrassingly undermine Iraq's fresh new authority to self-govern.

However, that sovereignty is something of a fig leaf.

U.S. forces can move at will and attack any target they wish without specific approval from Baghdad.

They also have the power to arrest and detain prisoners. American forces continue to hold over 10,000 detainees, all without charges until they are handed over to the Iraqi government or freed.

U.S. forces operate in a legal netherworld. If Iraq were fully sovereign, they would be subject to a "status of forces agreement" -- as U.S. troops based in other allied nations are -- which spells out the rights and authorities of American troops and the host country, an agreement that can be vacated if the hosts -- in this case, Iraq -- want.

Instead, U.S. forces in Iraq are governed by a one-sided order put in place by the American occupation authority that gives them complete immunity to Iraqi law as well as impunity to pursue the war as they see fit.

Operations are coordinated with the Iraqi government, but it does not have veto power over American actions, according to U.S. military officials.

But, because of the formal sovereignty of Iraq, American occupiers lack the authority and obligations conferred by the 4th Geneva Convention. Among other things that treaty requires an occupying force to maintain law and order and to protect detainees and civilians.

"What we have is a situation that is neither war nor peace, where we're operating on their territory and legal enforcement is completely ambiguous," said Scott Horton, New York City Bar Association chairman of the committee on international law. "In this setting for political reasons we have said the occupation is over, but we're still there and fighting. It creates a situation our troops are not trained, supplied and set up to deal with."

Horton said Horst's response -- to inspect and take over the jail -- was the right thing to do, both legally and morally, and was a positive change from June 2004.

"I give Horst and Casey very high credit for what was done. I think to approach this from the perspective from nitpicking legalities would be wrong," Horton said. "I think if you're in the position to control or actually exercising de facto control and you observe and tolerate abuse, you are guilty and liable. You have a duty to intervene and stop it," he said.

That responsibility is double in Iraq, where U.S. forces are responsible for training Iraqi security forces. There are more than 200,000 on the payroll, and they will eventually take over the fight against Iraq's insurgency.

They are also aware of abuses: At one Iraqi military base, American officers banned interior ministry interrogators from questioning prisoners when they caught two beating detainees and apparently burning them with cigarettes. They reported the incident to the ministry but that is as far as their authority goes, they told UPI.

"You have this legalistic position 'the Iraqis are responsible, we're not. It's their problem,'" said Horton.

That Horst called the interior ministry for permission to enter -- which U.S. officials took pains to point out Thursday -- avoided an outright and embarrassing violation of Iraqi sovereignty.

While the Army staked a claim to moral high ground on Sunday, the White House continues its efforts to reserve the right for the U.S. government to use torture. It has promised to veto any bill that includes a ban on cruel and inhuman treatment of prisoners and establishes the Army Field Manual as the government-wide standard for all interrogations.

Arizona Republican Sen. John McCain, who was tortured during his five-years as a Vietnamese prisoner of war, sponsored the amendment now in both the defense spending and authorization bills. The House has not approved similar language.

"I don't know where we get off being shocked at what the Iraqis do when this is our White House's stated policy," said a senior Pentagon official on condition he not be named.

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Democrats Propose Pullout From Iraq, Battle White House
Washington (AFP) Nov 17, 2005
Democrats and the White House traded fresh salvos over US Iraq policy Thursday, as a top Democratic lawmaker introduced a bill demanding an immediate withdrawal of US troops there.

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