William Fisher

NEW YORK, Apr 13 2005 (IPS) — The U.S. Joint Chiefs of Staff, the military’s most senior leaders, want Defence Secretary Donald Rumsfeld to approve new guidelines that will formalise the George W. Bush administration’s policy of imprisoning so-called enemy combatants without the protections of the Geneva Conventions and enable the Pentagon to legally hold "ghost detainees", a human rights group is charging.

In a letter to Rumsfeld, advocacy group Human Rights Watch (HRW) said, "Denying the protections of the Geneva Conventions to persons apprehended in the global war on terror is unsupported as a matter of law, represents a radical deviation from the standards that have traditionally guided U.S. military operations, and places U.S. service members and civilians detained by enemy forces at greater risk of mistreatment."

The new memorandum, now in final draft, is known as the "Joint Doctrine for Detainee Operations: Joint Publication 3-63", and is dated Mar. 23, 2005.

"If the draft memorandum is approved, it will formalise ‘enemy combatant’ as a class of prisoner that the Bush administration says has no protections under the Geneva Conventions," HRW attorney John Sifton told IPS. "There are no categories of prisoners unprotected by one or another of the Geneva Convention."

An additional concern, he said, is that the draft memorandum would give the military authority to classify as an enemy combatant anyone whose name appears on a government watchlist.

"The proposed watchlist includes a wide variety of groups from Sikhs to followers of Peru’s Shining Path, and potentially hundreds of thousands of people named Ahmed or Mohamed. This is a huge and radical departure that could further erode the rule of law."

The letter to Rumsfeld, signed by HRW Executive Director Kenneth Roth, says if the Defence Department acts on the new guidelines, "U.S. military personnel may be committing grave breaches of the Geneva Conventions and placing themselves at risk of prosecution for war crimes."

The organisation argues that the U.S. government’s decision in January 2002 to "disavow the applicability of the Geneva Conventions in the global war on terror" has been at the root of detainee abuse scandals in Iraq, Afghanistan and Guantánamo Bay.

HRW says the new rules "will send a message to the world that the Geneva Conventions are not law, but mere policies that can be changed according to tastes of a particular government."

This in turn would have "a profound impact on future armed conflicts between states and the soldiers and civilians affected by them, including Americans." The new policies include a directive that would allow the military to hold enemy combatants as "ghost detainees" by denying them access to the International Committee of the Red Cross, HRW says.

They also contain overly broad criteria for designating as an enemy combatant anyone who appears on a government list that contains common names and aliases shared by tens of thousands of persons worldwide.

The Pentagon document has not yet been publicly released, and is to be submitted to Rumsfeld for approval on Apr. 16.

The Defence Department declined to comment on the draft memorandum or the HRW letter to Rumsfeld. Last June, the U.S. Supreme Court handed down two decisions related to the detention of enemy combatants at Guantanamo Bay, Cuba. In the first case, the justices ruled that detainees had the right to due process and must be allowed to contest their imprisonment before a "neutral decision-maker".

The second case confirmed that U.S. courts have jurisdiction to hear such challenges. The Defence Department then created special military tribunals to determine which Guantanamo prisoners posed threats to the U.S. These bodies have been criticised for denying detainees the most basic due process, including attorney-client confidentiality.

Little information about those held at Guantánamo has been released through official government channels. But stories of 60 or more of the prisoners are spelled out in detail in thousands of pages of transcripts filed in U.S. District Court in Washington, where detainees have filed lawsuits challenging their detentions.

Court documents publicised last week are giving dozens of Guantánamo detainees what the Bush administration had sought to keep from public view: identities and voices. The government is holding about 550 terrorist suspects at its naval base in Cuba. An additional 214 have been released since the facility opened in January 2002 – some into the custody of their native governments, others freed outright.

The detainees appeared last year before the three-officer military tribunals which, after quick reviews, confirmed their status as "enemy combatants" who could be held indefinitely.

In the transcripts, one terror suspect asked his U.S. military judge: ”Is it possible to see the evidence in order to refute it?"

In another case, Guantanamo prisoner Feroz Ali Abbasi was ejected from his hearing for repeatedly challenging the legality of his detention.

”I have the right to speak," Abbasi insisted in transcripts reviewed by the Associated Press.

”No, you don’t," the tribunal president replied.

”I don’t care about international law," the tribunal president told Abbasi just before he was taken from the room. ”I don’t want to hear the words ‘international law’ again. We are not concerned with international law."