Lawyers both in and outside the Bush administration are debating how prisoners held by the CIA may be affected by this week's policy shift on detainees.
The White House conceded Tuesday that the Geneva Conventions do apply to terror suspects in U.S. custody. Those conventions guarantee the right to basic human and legal protections.
The key document involved is a Pentagon memo written by Deputy Defense Secretary Gordon England and made public Tuesday. It states that Common Article 3 of the Geneva Conventions "applies as a matter of law to the conflict with al-Qaida. "
But confusion persists over what that will mean for prisoners held by intelligence agencies, as opposed to those held by the military in places such as the U.S. prison camp at Guantanamo Bay, Cuba.
The White House has said very little on the subject. When the policy shift was first announced, reporters were told that the change would not apply to CIA detainees.
But on Wednesday, White House spokesman Ken Lisaius suggested that the new policy probably will apply to those held by the CIA. He referred to an executive order President Bush issued in 2002 that said terror suspects were not covered by the Geneva Conventions. Lisaius said that across the U.S. government, that executive order no longer applies.
That suggests the Bush administration has decided to afford basic rights to the several dozen high-level al-Qaida suspects presumed to be in CIA custody. If so, it would signal a radical rethinking of how the administration plans to deal with such prisoners going forward.
Among those who would be affected are Abu Zubaydah, a key al-Qaida lieutenant captured in Pakistan in March 2002, and Khalid Shaikh Mohammed, whom the 9/11 Commission Report called the "principal architect" of the terrorist attacks of Sept. 11, 2001. He was captured in Pakistan in 2003. The CIA has never admitted it is holding anyone.
If the Geneva Conventions do indeed apply to these suspects, at a minimum, the U.S. government would be required to report who it is holding, according to former lawyers at the CIA and National Security Agency contacted by NPR. The U.S. government would also need to make some progress in deciding whether to pursue prosecutions against them.
How such prosecutions would proceed is still unclear. Suspects like Zubaydah and Mohammed are believed to have been interrogated using aggressive techniques, which would make the evidence obtained inadmissible in a federal court. But CIA lawyers would have to devise some sort of due process.
Legal experts say detainees would at least be entitled to meet with a CIA or military lawyer with security clearance. Those lawyers would be able to establish if the right person is in custody -- given that identity mistakes have been made with terrorism suspects detained since the Sept. 11 attacks.
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