ARLINGTON, Va. — The Defense Department’s action of hiding a detainee in Iraq has jeopardized the lives of U.S. servicemembers, especially those who might be taken prisoner of war, a military law expert said.
“This involves the golden rule of reciprocity,” said Eugene Fidell, involved in military law for 35 years. “How would we like it if our people fell into the wrong hands … and were kept incommunicado and off the books?”
Defense Secretary Donald Rumsfeld admitted Thursday that he approved a request by CIA Director George Tenet to secretly hold a highly valued suspected terrorist in a U.S.-run prison in Iraq.
“I found the secretary’s disclosure shocking,” Fidell said.
But the terrorists already aren’t playing by the rules, said Daniel Goure, vice president at the Lexington Institute think tank.
“They’re slaughtering civilians, blowing up their own. I’m not sure why we have this fantasy that if we stick by the rules, so will they,” he said. “They already don’t adhere to the rules. I’m not worried about our servicemembers in the hands of … terrorists. That risk is already extraordinarily high.”
However, holding prisoners in secret is inconsistent both with rules set under the Geneva Conventions and with repeated statements by Rumsfeld and other Pentagon officials, who have maintained that all prisoners in Iraq will be afforded Geneva Conventions status, Goure said.
“There is reason to be concerned that this type of action might erode the sanctity of the Geneva Conventions and, therefore, in future conflicts, one could argue it could increase risk to troops,” Goure said.
The U.S. military should have promptly registered the prisoner, said Dan Dell’Orto, the Pentagon’s principal deputy general counsel.
“The Red Cross serial number should have been registered soon, relatively soon,” he said Thursday at Rumsfeld’s press briefing.
Even if they had registered this detainee, the military could have denied an ICRC member access to interviews and inspection if doing so “might interrupt … or disturb your ability to get information you need to get, particularly there and on the ground, where we had a terrorist of a known terrorist organization, of high rank,” Dell’Orto said.
When asked if the Pentagon plans to suspend the practice in light of Dell’Orto’s comments, a Pentagon spokesman said: “That’s not something we’re ready to talk about yet.”
To rectify the situation, the Pentagon “has to abandon this policy,” Fidell said. “The International Committee of the Red Cross attempts to work with great discretion. That is its hallmark, and is a policy that has served the ICRC very well and has served the interests of the United States.
“Where the books are being cooked, basically by the secret detentions, frustrates the ICRC’s ability to perform its function,” said Fidell, who also is president and co-founder of the nonpartisan National Institute of Military Justice.
For this article, he offered his own views. NIMJ has not taken a position on the issue.
The NIMJ, a nonprofit organization based in Washington that has many members who served on active duty as judges and lawyers, scrutinizes the military justice system and, when it deems necessary and appropriate, makes recommendations for change to Congress, the Pentagon or the Court of Appeals for Armed Forces, Fidell said.
Fidell also finds worrisome that there may be other cases.
Rumsfeld acknowledged to reporters that other prisoners have been held secretly.
“There are instances where that occurs,” he said.
Rumsfeld said the prisoner has not been mistreated, and distanced the case from the Abu Ghraib prison scandal.
“He has been treated humanely,” Rumsfeld said. “There’s no implication of any problem. He was not at Abu Ghraib. He is not there now. He has never been there, to my knowledge. There’s no question at all about whether or not he’s received humane treatment.”
