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Detainees not covered by Geneva Conventions, report concluded

From Ingrid Arnesen

Crime, Law and Justice
Abu Ghraib
Geneva Conventions

(CNN) -- A classified report prepared more than a year ago for Defense Secretary Donald Rumsfeld contends the U.S. government's detention of al Qaeda and Taliban members is not bound by the Geneva Conventions regarding the use of torture.

The report states that while the United States ratified the 1994 Convention Against Torture, it did so "with a variety of reservations and understandings."

The document, "Working Group Report on Detainee Interrogations in the Global War on Terrorism," is dated March 6, 2003 and is marked "draft, classified by: Secretary Rumsfeld, to be declassified on: 10 years."

The 56-page copy obtained by CNN is incomplete: a new chapter -- on "Presidential and Security of Defense Directives" -- begins on the final page.

According to the Wall Street Journal, which ran excerpts of the study Monday, a working group appointed by the general counsel of the Defense Department, William J. Hayes II, compiled the report. It reviews the laws of war under the Geneva Conventions regarding the use of torture.

While noting that the United States in 1994 ratified the Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment, it "did so with a variety of reservations and understandings."

One of those reservations stipulates "the United States has maintained consistently that the covenant does not apply outside the United States or its special maritime and territorial jurisdiction, and that it does not apply to operations of the military during an international armed conflict."

It concludes "that customary international law cannot bind the executive branch under the Constitution, because it is not federal law" and that "under clear Supreme Court precedent, any presidential decision in the current conflict concerning the detention and trial of al Qaeda or Taliban militia prisoners would constitute a 'controlling' executive act that would immediately and completely override any customary international law."

In short, the study found that ultimate power on the treatment of enemy combatants rested with President Bush because "in order to respect the president's inherent constitutional authority to manage a military campaign, (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his (authority as) commander-in-chief."

It added, "any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the commander-in-chief authority in the president."

The study outlined several cases in which anti-torture laws could be either disregarded or limited.

Referring to detainees held at the U.S. naval base at Guantanamo Bay, Cuba, it stated, "The U.S. criminal laws do not apply to acts committed there by virtue of (Guantanamo's) status as within the special maritime and territorial jurisdiction" and that "aliens held (at Guantanamo) do not have constitutional rights under the Fifth Amendment of due process."

The study listed a host of "torture techniques" that could be validated if they "were proportional to the threat."

A section in the report, however, referred to U.S. Field Manual 30-15 as saying it "prohibited the use of force during interrogations."

"The manual indicated that the goal is to collect usable and reliable information, in a lawful manner, promptly, while meeting the intelligence requirements of the command," it said.

But the report concluded, "in the light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas."

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