Presented last fall with a detailed catalog of abuses at Abu Ghraib prison, the American military responded on Dec. 24 with a confidential letter asserting that many Iraqi prisoners were not entitled to the full protections of the Geneva Conventions...
Prisoners of war are given comprehensive protections under the Third Geneva Convention, while civilian prisoners are granted considerable protection under the Fourth Convention. But under the argument advanced by the military, Iraqi prisoners who are deemed security risks can be denied the right to communicate with others, and perhaps other rights and privileges, at least until the overall security situation in Iraq improves.

The military's rationale relied on a legal exemption within the Fourth Geneva Convention.

"While the armed conflict continues, and where `absolute military security so requires,' security detainees will not obtain full GC protection as recognized in GCIV/5, although such protection will be afforded as soon as the security situation in Iraq allows it," the letter says, using abbreviations to refer to the Article 5 of the Fourth Geneva Convention.

That brief provision opens what is, in effect, a narrow, three-paragraph loophole in the 1949 convention. The Red Cross's standing commentary on the provision calls it "an important and regrettable concession to State expediency." It was drafted, during intense debate and in inconsistent French and English versions, to address the treatment of spies and saboteurs.

"What is most to be feared is that widespread application of the article may eventually lead to the existence of a category of civilian internees who do not receive the normal treatment laid down by the convention but are detained under conditions which are almost impossible to check," says the Red Cross commentary, which is posted on its Web site. "It must be emphasized most strongly, therefore, that Article 5 can only be applied in individual cases of an exceptional nature." ...

The category in which prisoners may be excluded from the protections of the Geneva Conventions that the letter cites, Professor Silliman said, are for people who can be shown to be a continuing threat to the occupying force, not people who might have valuable intelligence...
The Red Cross report said that at the time of the October visits to Abu Ghraib, "a total of 601 detainees were held as security detainees."
(NY Times)