From the start, the Geneva Conventions were an issue for the Bush administration's war on terror. For more than half a century the conventions have laid out clear and inflexible standards on the detention and interrogation of prisoners and detainees in a war. Geneva's guidelines have long been interpreted as covering any detainee, whether combatant or civilian. As the International Committee of the Red Cross's commentary on the convention states: "There is no intermediate status; nobody in enemy hands can be considered outside the law."
But that would not be the case in America's war on terror. And the decision to depart from Geneva's principles would have immense, sometimes tragic, consequences for U.S. forces in Afghanistan and Iraq, and the prisoners they captured.
September 11, 2001
The "Geneva" problem surfaced in the earliest weeks following 9/11. White House lawyers began evaluating how to categorize America's new enemy: global terrorists like Al Qaeda.
In February 2002 President Bush reached a decision. He announced that Al Qaeda and the Taliban who gave them sanctuary in Afghanistan would be considered "unlawful combatants" and not entitled to the protections of the Geneva Conventions. A key factor in the president's decision was that the Taliban and Al Qaeda were a different kind of enemy -- neither fell under the Third Geneva Convention's definition of an enemy force, which includes having an organized command structure, carrying arms openly, and conducting operations in accordance with the laws of war.
With Geneva out of the way, Secretary of Defense Rumsfeld authorized aggressive interrogation of Taliban and Al Qaeda fighters picked up in Afghanistan and moved to detention facilities at Guantanamo Bay, Cuba. The methods used on these detainees far exceeded the Third Geneva Convention's prohibition on using "any … form of coercion" to get information out of prisoners. At one point, military intelligence at Guantanamo were authorized to use techniques such as scaring prisoners with dogs, placing them in isolation, keeping them awake for 20-hours, stripping them naked -- a humiliation for devout Muslims -- and placing them in painful stress positions.
For U.S. military forces, the message got out: Geneva can be sidestepped. Regular combatants in uniform are protected; unconventional or "unlawful combatants" captured in the war on terror are not.
March 2003 -- The U.S. Invades Iraq
With the toppling of Saddam Hussein's regime and the escalating insurgency that followed, U.S. soldiers confronted a new kind of prisoner: thousands of suspect civilians who might be part of the insurgency, or aiding it.
Thus, in Iraq, American soldiers would be expected to comply not only with the Third Geneva Convention's rules governing the treatment of uniformed enemy soldiers but also the Fourth Geneva Convention that governs treatment of civilians by an occupying army. The Fourth Convention's guidelines are less specific than the Third's, but at a minimum require that civilian detainees not be subjected to "humiliating or degrading treatment." Moreover, even Iraqi insurgents and others not covered by the Third Convention would be covered by the Fourth Convention which even has rules -- in its fifth article -- for handling "a spy or saboteur" who commits crimes against the occupying power.
But American soldiers were not as well versed in the Fourth Geneva Convention as they were with the Third. Furthermore, the rhetoric coming from Washington was that Iraq was another front in America's "war on terror," implying Iraq's insurgents were "unlawful combatants" just like the detainees at Guantanamo whom President Bush had declared outside Geneva's protections.
As the violence grew, Gen. Ricardo Sanchez, head of the U.S. military in Iraq (known as Combined Joint Task Force Seven, CJTF-7), pushed his officers for actionable intelligence. And Sanchez's staff looked for loopholes in the Geneva Conventions that would allow harsher tactics on detainees.
That summer, Capt. William Ponce of Gen. Sanchez's intelligence staff wrote a memorandum to military intelligence in Iraq in which he distinguished "unlawful combatants" from those "lawful combatants" protected by Geneva. Capt. Ponce admitted there was confusion about the treatment of "enemy combatants," but promised he was working on a set of Rules of Engagement and asked the troops to submit a "wish list" of interrogation techniques. He concluded his e-mail:
The gloves are coming off gentlemen regarding these detainees, Col. Boltz has made it clear that we want these individuals broken. Casualties are mounting and we need to start gathering info to help protect our fellow soldiers from any further attacks.
Gen. Sanchez's Memo
That summer of 2003, the Pentagon sent Maj. Gen. Geoffrey Miller to Iraq. Miller, who as commander of the prison at Guantanamo had brought in tougher interrogation techniques, was asked to advise Gen. Sanchez on how to get better intelligence from Iraq's detainees. Gen. Miller's team gave Sanchez lists of techniques that were used at Guantanamo. (Gen. Miller would later tell Pentagon investigators he advised Gen. Sanchez's staff to first review the legality of any techniques before implementing them.)
Following Gen. Miller's visit, Gen. Sanchez issued a set of interrogation policies for Iraq based on documents provided by Gen. Miller. The techniques included ones used at Guantanamo -- military dogs, isolation and stress positions -- but Gen. Sanchez had to approve them in advance.
Gen. Sanchez's September 2003 memo also had warnings about the Geneva Conventions -- the same warnings that Donald Rumsfeld had cited months earlier when he authorized coercive interrogation at Guantanamo. For example, at one point Sanchez's memo referred to a technique called "Pride and Ego Down." His memo noted:
"Caution: Article 17 of Geneva III provides, 'Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.' Other nations that believe detainees are entitled to EPW [Enemy Prisoner of War] protections may consider this technique inconsistent with the provisions of Geneva."
While Gen. Sanchez's memo indicated that the list of techniques had been "modified for applicability to a theater of war in which the Geneva Conventions apply," the memo only referred to the Third Convention's protections for what the U.S. military calls "enemy prisoners of war" [EPW]. The memo implies some prisoners are protected as EPWs; others are not.
The status of detained civilians in Iraq -- who would be covered by the Fourth Convention -- was never addressed in Sanchez's memo.
In 2004, an investigating commission headed by former Secretary of Defense James Schlesinger concluded that Sanchez and his lawyers believed that they could designate some Iraq detainees as falling outside of Geneva protections, just as President Bush had done earlier in declaring Al Qaeda and Taliban detainees at Guantanamo "unlawful combatants."
October 2003 -- More Uncertainty
By October, Central Command had decided that Sanchez's September memorandum allowing coercive interrogation had gone too far. Gen. Sanchez was told to rescind it.
Gen. Sanchez then issued a new memorandum that made clear even "security internees" were covered by the Fourth Geneva Convention's protection of civilians. However, the text of this October memo only added to the confusion because the new approved tactics Sanchez described were not as detailed as in the September memo.
In fact, the memo was left intentionally vague in order to provide interrogators some latitude on the exact techniques that could be used. As Gen. Sanchez's chief legal adviser at CJTF-7 who drafted both memos, later explained to military investigators, Sanchez's October memo was drafted with the understanding that "MI doctrine suggests that use of approved approaches should be left to the imagination of the interrogator."
It would turn out that the more general language also would provide CJTF-7 staff with a level of deniability about the techniques that were actually used on detainees.
Adding to the uncertainty over interrogation techniques was the memo's inclusion of a list of "safeguards" for techniques that were not even listed. One example: The use of military working dogs was not explicitly authorized, but Gen. Sanchez wrote: "Should military working dogs be present during interrogations, they will be muzzled and under control of a handler at all times to ensure safety."
Abu Ghraib -- and Beyond
According to the military's Fay-Jones investigation, the lack of clear rules to follow and the confusion over which prisoners fell under Geneva contributed to the environment that produced the notorious prisoner abuse at Abu Ghraib.
And according to several soldiers interviewed by FRONTLINE, prisoner abuse caused by confusion over Geneva's protections extended beyond Abu Ghraib. They say well into 2004 it was common throughout Iraq to use techniques including isolation, stress positions, sexual humiliation, exposure to cold and the use of dogs to provoke extreme fear in detainees.
Spc. Tony Lagouranis (Ret.), a military intelligence interrogator who served in Iraq in 2004, said the working assumption was that harsh techniques had been authorized. Lagouranis said his superiors even provided him written authorization for techniques such as threatening detainees with military working dogs. Although the dogs were muzzled (as Gen. Sanchez had required in his October memo), detainees were wearing hoods, says Lagouranis, and would sometimes urinate on themselves in fear. Lagouranis's story was confirmed to FRONTLINE by one of his former supervisors.
"[Iraqi detainees] weren't being afforded the legal status of enemy prisoners of war," said Lagouranis. "But supposedly, we were treating them as though they were. But we weren't. There's just no way that what we were doing and what was sanctioned by the Pentagon through the IROE, the Interrogation Rules of Engagement, fit within the Geneva Conventions."
Military leaders have insisted they never authorized such conduct. In May 2004, Gen. Sanchez was asked by Sen. Jack Reed (D-R.I.) whether he ever approved sleep deprivation, excessive noise, creating fear, or the use of military dogs in interrogations. Gen. Sanchez responded, "I have never approved the use of any of those methods within CJTF-7 in the 12-and-a-half months that I've been in Iraq."
When Secretary Rumsfeld was questioned by Sen. John McCain (R-Ariz.), soon after the Abu Ghraib scandal surfaced, he was asked about the standing orders for the military police at the prison. Rumsfeld responded unequivocally: "[T]heir instructions are to, in the case of Iraq, adhere to the Geneva Conventions. The Geneva Conventions apply to all of the individuals there in one way or another."
But the troops on the ground never got that message.
Lagouranis and other soldiers in Iraq are now concerned that they could face criminal liability for violations of the Geneva Conventions, even though they believed at the time that they were following U.S. policy.