Archival Rescue 20 ~ Aus Military in Iraq

Military lawyers a law unto themselves
April 30, 2005, Marian Wilkinson, Sydney Morning Herald

Australian officers in Iraq have been faced with a legal and moral minefield, writes Marian Wilkinson.

At the peak of the insurgency attacks in Baghdad at the end of 2003, an Australian military lawyer, Major George O'Kane, was asked by his US superiors to help with the transfer of a suspected jihadist who had been picked up by US Special Forces in the Persian Gulf and was to be taken to Abu Ghraib prison.

The suspect, US commanders told O'Kane, was a "high-value detainee". He was a suspected member of al-Qaeda whom US intelligence officers wanted to interrogate. At the time O'Kane helped in this transfer, he had on his desk serious complaints from the International Committee of the Red Cross, claiming prisoners at Abu Ghraib, especially those under interrogation, were being abused.

Just a day or so after the transfer, one "high-value detainee", also picked up in the Persian Gulf, was photographed by a US military officer, kneeling in a small cell at Abu Ghraib, his hands bound behind his back. A dog bared its teeth a metre from his face. That was just one of many photographs to appear months later, when the Abu Ghraib prison scandal broke. It is unclear if the photo was linked to the prisoner O'Kane helped to transfer, and a Defence spokesman said yesterday that information on the identity of the prisoner in the photograph was a matter for the US Government.

O'Kane took no part in interrogating the jihadist. As an Australian legal officer seconded to the US military headquarters in Baghdad, his job was to process the suspect and get him to his place of interrogation. But the case is an example of the legal and moral conundrum faced by Australian military and intelligence officers serving as junior members in the US coalition in Iraq and Afghanistan.

As 450 members of a new Australian taskforce set up in Al Muthanna province in southern Iraq, human rights lawyers are again asking whether the Howard Government is giving its military and intelligence officers clear guidelines under international law to ensure they do not expose prisoners to torture or abuse when they are handed to their allies.

As the new Iraqi Government struggles to its feet, there is also a legal debate over whether all prisoners will, as expected, be handed over to Iraqi authorities, or whether so-called high-value detainees, former members of Saddam Hussein's regime or key insurgents, will first be handed over to US intelligence for interrogation.

The Herald asked the Defence Department a week ago to lay out Australia's policy on the transfer of Iraqi prisoners, but there was still no final answer yesterday.

THE Howard Government's policy on the handling of prisoners in Iraq has been controversial since the first Australian forces arrived in the country in March 2003 and began scooping up Iraqi prisoners and handing them over to the US.

The legal brains of the Government agreed to a so-called memorandum of understanding with Washington that officials hoped would limit Australia's legal responsibilities for the prisoners. At all times, Australian forces would be accompanied by a US or British officer, who would take charge of any prisoners the Australians secured, transferred or transported. By doing this, Australia's obligations to prisoners under the Geneva Conventions "were not activated", as the senior Foreign Affairs lawyer, Greg French, said. It would not be responsible for them.

But Labor's foreign affairs spokesman, Kevin Rudd, and leading international lawyers in Australia said this was an attempt to "shirk" responsibilities. Hilary Charlesworth, a professor of international law from the Australian National University, and several of her colleagues argued that Australia, as a member of the US-led coalition, was "directly responsible for the welfare of any Iraqi prisoner it captured".

Professor Don Rothwell, from Sydney University, said that, at least for the first year of the Iraq war, Australia also had a responsibility to ensure any civilian prisoners it transferred to the Americans, including suspected insurgents, were treated with humanity.

The theory was soon put to the test in Iraq, and Australian defence and intelligence officers struck a legal and ethical minefield. When O'Kane transferred the jihadist suspect to Abu Ghraib, he had limited power, but he did have knowledge. He was not only given the confidential Red Cross complaints about Abu Ghraib, but he was the principal drafter of the coalition response to them. As the US army investigation of Abu Ghraib later found, that response glossed over the complaints, "to the point of denying the inhumane treatment, humiliation and abuse identified by the [Red Cross]".

Even more difficult was the legal and ethical dilemma faced by other Australian officers seconded to US operations. One officer, whose name has been withheld by the Defence Department, learnt that his US military colleagues were hiding high-level Iraqi prisoners of interest to US intelligence. The practice, known as keeping "ghost detainees", violated international law and has been condemned by US military lawyers and the Red Cross.

Yet the officer, when told of the "ghost detainees", did not inform his Australian superiors, Australian military sources said. He came forward only after the Abu Ghraib scandal blew up in the Australian Parliament. His evidence was handed over to the US embassy in Canberra but was never revealed to the Parliament or the public.

An Australian intelligence officer, Rod Barton, also found himself in a legal quagmire when he was sent, as part of the Australian contingent to the Iraq Survey Group, to search for Saddam's weapons of mass destruction. His duties included questioning former Iraqi weapons scientists held in a prison near Baghdad Airport called Camp Cropper. He became disturbed after seeing two prisoners who appeared to have facial bruising. Then another scientist mysteriously died - from a brain tumour, Barton was told.

On returning to Australia in March last year, he raised his concerns about abuse with the Defence Department, recommending that no Australian be involved in interrogating prisoners. There was little interest, even though Australian officials were receiving reports from military lawyers in Iraq, including O'Kane, of the Red Cross complaints about prisoner abuse.

A legal black hole opened up for Barton when he returned to Iraq in September to help compile the final report on Iraq's weapons program. By then the Iraqi interim government had been installed. But the US head of the Iraqi Survey Group, Charles Duelfer, was still issuing instructions on interviewing Iraqi prisoners. He asked Barton to interview several prisoners about the contents of the weapons report.

But Barton had learnt the British were refusing to do interviews after receiving legal advice that they had no authority to do so. "They weren't allowed to question them or prepare questions or even allowed to use the product of the questioning after June," he recalled. Australian officials could not tell him what to do, so Barton decided not to do any more interviews.

Many Australian military and academic lawyers who spoke with the Herald last week said that Australia needed to be more vocal about the legal pitfalls for its military and intelligence officers in Iraq. As O'Kane warned in his final report on his Iraq experience, the handling of prisoners in conflicts such as Iraq and Afghanistan "will always become a red-line issue unless properly planned for and resourced appropriately". For Australia, relying on its senior partner, the US, has proved problematic.