Hassan Ghul and Goldsmith’s Exception to the Geneva Convention’s Protected Person Rule

According to the May 30, 2005 CAT memo, the CIA wrote Jack Goldsmith with what appears to be a description of Hassan Ghul on March 12, 2004.

Intelligence indicated that prior to his capture, [redacted] "perform[ed] critical facilitation and finance activities for al-Qa’ida," including "transporting people, funds, and documents." Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted], Assistant General Counsel, Central Intelligence Agency (March 12, 2004).

On March 18, 2004, Goldsmith finalized a memo finding that non-Iraqi members of al Qaeda need not be afforded protected status under the Geneva Convention.

We conclude that the following persons, if captured in occupied Iraq, are not “protected persons” within the meaning of GC article 4: U.S. nationals, nationals of a State not bound by the Convention, nationals of a co-belligerent State, and operatives of the al Qaeda terrorist organization who are not Iraqi nationals or permanent residents of Iraq.

The following day, Goldsmith drafted–but did not finalize–a memo finding that in some cases the US–as the occupying power–could transfer "protected persons" out of Iraq (but probably shouldn’t).

We conclude, accordingly, that article 49(1)’s prohibition on "forcible transfers," like its prohibition on "deportations," does not extend to the removal, pursuant to local immigration law, of "protected persons" who are illegal alients.


…we conclude that it is permissible to relocate "protected persons" who have not been accused of an offense from Iraq to another country, for a brief but not indefinite period, for purposes of interrogation.14


14. While we conclude that GC does not prohibit temporary relocations of "protected persons" from occupied territory for a brief but not indefinite period, neither technical usage nor the Convention provides clear or precise guidance regarding exactly how long a "protected person" may be held outside occupied territory without running afoul of Article 49. Furthermore, violations of Article 49 may constitute "[g]rave breaches" of the Convention, art. 147, and thus "war crimes" under federal criminal law.

Now, we cannot be sure of the connection–nor can we be completely certain that the reference in the CAT memo pertains to Ghul (though it accords with the known details about him), but it appears these memos were at least partly an exercise in figuring out a way remove Ghul from Iraq to what ended up being one of CIA’s black sites. 

The detail is important for two reasons. It seems to date Ghul’s CIA custody to at least March 2004. More importantly, it provides one possible explanation for why Ghul–unlike a number of other High Value Detainees–remains disappeared. Goldsmith would argue, I think, that Ghul fell under his exception for Al Qaeda operatives. Yet he seems quite aware of the legal dangers of an occupying power rendering someone to be tortured. And after SCOTUS ruled in Hamdan that the Geneva Convention does apply to al Qaeda, that risk became even greater. 

39 replies
  1. thatvisionthing says:

    Question I had left at the end of comments for your previous Hassan Ghul post ( http://emptywheel.firedoglake……-bradbury- ) — Is Hassan Ghul the same as Haned Hassan Ahmad Guleed, identified in the ICRC report as a Somali arrested March 4, 2004 in Djibouti? He was the only one of the 14 detainees that they hadn’t requested an intervention for, because they didn’t know he existed.

    • emptywheel says:

      Oh, there’s not much doubt (within a few days) when he was captured.

      But he was captured by Kurds, reportedly turned over to the military, and then turned over to the CIA. So his capture date doesn’t help us figure out when he went into CIA custody.

      In CAT (in the paragraph that matches a paragraph with Ghul’s name unredacted), they say, “CIA took custody” of Ghul, as if it was a more bureaucratic transfer. It was probably more disorganized than that–basically accepting an unnamed prisoner at Nama or something–but in any case, I’m somewhat interested in how long it took for him to get to CIA custody, formally.

  2. Watson says:

    We conclude that the following persons, if captured in occupied Iraq, are not “protected persons”

    The Mengeles of the Bush, and now Obama, adminstrations claim that they are wiser and more practical than the rest of us, particularly than the judges and lawyers.

    It’s ironic that they are so legalistic.

    They are basically defining people as non-human in order to deprive them of their human rights.

  3. wavpeac says:

    This is the best most cogent reason for first of all, not torturing and secondly for the behavior of “all” violent regimes. The cognitive distortion is exactly the one you rendered above. “not human”.

    Listening to the right wing this is exactly the concept. They have no protection if guilty, (not human) and they have no protection if they might be guilty (not human).

    The ultimate invalidation.

    • DWBartoo says:

      When the “law” is turned inside-out, to become a bludgeon to crush the human spirit and destroy truth …

      And, when “psychology” is turned on its head, to facilitate the destruction of individual and collective social sensibilities and used, simply, to control and manipulate …

      Then we have become an empire.

      An empire built upon greed and destruction [what else is the the most massive (and expensively “bankrolled”) military apparatus in the world going to do?].

      Apparently, a substantial portion of the “public” and most, if not all of the “leaders” of the two political parties deemed “legitimate” in our society, lack sufficient imagination to actually understand “what” torture “is”, as well as lacking the imagination to consider that if “fear” is what we are “sowing”, then what we shall “reap” is sustained, and justifiable, hatred. (All war, all the time, waged against everyone. Some future.)

      During the Middle Ages, Kings lost the gambit of being possessed of “divine rights”, now, however, a sacred “secrecy” will allow more “power” than those kings could possibly have imagined.

      It is not just the U.S. Constitution which has been under assault, the Magna Carta has been rendered “quaint” by Bush-Cheney … and Obama.

      One sincerely hopes, however audaciously, that certain judges are serious about “consequence” and not merely playing clever parlor games with their drinkin’ buddies from the gummint.

      It’s all we have left, almost, considering the ongoing, and increasingly clear, complicity of Congress.


      • wavpeac says:

        I think it would be very interesting to apply a trauma paradigm to the global level and see what similarities exist. I personally think there is a very fine line between being a victim and being a perpetrator. And this dialectic is one that needs synthesis and resolution if the human race is going to rise above it. The black and white response is to simply ignore those complexities…and determine a non human quality that allows for destruction. If we cannot control it…it is non human.

        Simply denial of something we fear to face in ourselves.

  4. Garrett says:

    Another person was “forcibly transported” out of Iraq at about this time.

    Khaled al-Maqtari, from Yemen, was captured in an insurgent roundup in Fallujah on Jan. 13, 2004. It does not sound like an al-Qaida capture at all.

    He was flown to Afghanistan on Jan. 21, before the Goldsmith memo. He was sent to a black site in April. He has since been released back to Yemen.

    Amnesty International account here


  5. emptywheel says:

    Incidentally, I’d be surprised if there weren’t Iraqis rendered to Afghanistan. I need to go back and re-read that section from Goldsmith, but I wonder whether AGAG didn’t have him finish the memo on protected people being rendered for a short time is because he didn’t want the war crimes warning to be officially given.

    • Aeon says:

      There were most certainly foreign fighters captured in Iraq rendered to Afghanistan.

      I do not know off the top of my head of any Iraqis sent to Afghanistan.

    • Garrett says:

      I’d guess the legal exposure on this (and any other foreign fighter sent from Iraq to elsewhere) is very high.

      The discussion (transfer someone first, work out the details for another prisoner shortly later) would be pretty interesting.

  6. jaango says:

    250,000 and counting!

    Today, at the web site of the Chicano Veterans Organization, and on the page titled, “Cactus Juice Commentaries”, is the third item posted for today,i.e, “Omerta…or Justicia Con Amor”, America’s Spanish-speaking military vets are acknowledging “emptywheel” for her work well-done. And to wit, Chicano military vets are her beneficiaries and these Kudos are being expressed by this community of self-interest. Congrats!


  7. fatster says:

    Nice article, EW. Thanx so much. Related article from Greenwald:


    The Obama officials blocking accountability for Bush crimes

    Wherein he discusses Mayer’s “anonymous name-calling”, Brennan’s role in “enhanced interrogation techniques”, and the on-going practices of concealment and cover-up. “Precisely because Obama has retained so many people involved with or otherwise linked to Bush abuses, he is surrounded by people actively working to block any investigation into or accountability for those crimes.  The most egregious example Mayer describes is the CIA official responsible for the abduction and rendition-for-torture of German citizen Khaled el-Masri, who turned out to be completely innocent . . . “

  8. JThomason says:

    I find all of this “we conclude” language Goldsmith uses interesting. Such phrasing is a pretense of judicial authority not possessed. Not an iota of humility tipping the hat of deference to the courts who would have the true authority to decide these issues. Oh what a grand sad charade.

  9. acquarius74 says:

    My comment at #131 on your last Ghul thread gives the link to a Human Rights Watch article in which soldiers give interviews and tell of what they observed/experienced in regard to detainee treatment.

    I believe the un-named detainee whom Jeff Perry tells of in my comment was Hassan Ghul or Detainee 2. A correction to my @131 = Jeff Perry was at Camp Nama during the first half of 2004, not the last half of 2004. Here is the link to that “mud pit” story.

    This mud-and-hose torture story happened in February, 2004. I do not see how a human could have survived that ordeal as described.

    The story of Camp Nama is dark indeed; and 70% of their computer records were “lost”. Nama was Special Ops but CIA, civilian contractors, soldiers in disguise as civilians, interrogators of all brands were there. Also, the detainees were shuttled around from site to site, supposedly to further disorient them. KSM and AZ and others speak of “at the 3rd place”, etc. Some of the 14 who were taken to GITMO in 2006 said they were sure they had been there before.

  10. BoxTurtle says:

    Somebody help me here, I fear I’m agreeing with Goldsmith on a point and I need corrected.

    Suppose an AQ fighter is captured in Iraq. He is not a citizen of Iraq or the USA, he’s from third country like Saudi Arabia.

    Could we not transport that person where we pleased out of Iraq and hold them? Granted, torture is still out, but it reads to me like an exception.

    Boxturtle (Please be gentle to me)

    • Mary says:

      Here’s how it should work under the GCs.

      There you are basically going to have prisoners of war and protected persons, bc almost all countries are signatories and that passes on the protected persons category to their citizens.

      It is perfectly correct under the GCs to transport POWs, under POW protections, anywhere out of country. It is a war crime under the GCs to transport civilians (the general protected persons category).

      Keep in mind that under the GCs, those living in a country who take up arms during an invasion of the country to fight invaders are deemed to be POWs when captured, even when they are not in uniform or part of the country’s organized fighting force.

      BC the GCs were pretty complete, they cover a case where there are roundups of non-uniformed persons who may include some who took up arms against the invading force (combatants – pows) and some who did not (protected persons), and it might be hard to distinguish between them in some instances. As a result, the GCs have a way to handle the situation where you “detain” someone as suspected of being a fighter against you (possible POW) but may just be a mistake (protected person).

      Someone who objects to their designated status, esp if taken other than in battle, is supposed to be able to have a full and fair reveiw of their status in a proceeding offering standards of due process.

      OK – first problem with making the GCs “work” is the fiction of creating this fictional, “President says they are ‘unlawful enemy combatants’ category, who are neither POWs nor protected persons. So – couple of things. If we had been operating under the GCs, then it would have been pretty clear that someone like you mentioned, a Saudi member of al-Qaeda who entered as a belligerent and operated as one could be detained as a POW. What about an Egyptian member of the Muslim Brotherhood? Who wasn’t taken in battle? But who may know members of al-Qaeda? Who says that he was going to deliver humanitarian aid?

      Or what about a sweep of all the male members of a village expected of having insurgents located there?

      The GCs would require that someone have a real hearing, with real evidence, before they could be treated as a belligerent and therefor eligible to be shipped out of country. That didn’t happen for anyone.

      This is why, at GITMO, a year (and often more) after they had already shipped persons to GITMO (already violated article 147 for anyone who was not a belligerent – esp under the AUMF designations of who were deemed our enemies) they crafted the Kangaroo court “Combatant Status Review Tribunals” (CSRTs) which were their well after the fact effort to put together a picture of compliance with the GCs. Of course, by that point there was already the Nakhleh memo on innocent people being held as war criminals, and if the DID find that someone wasn’t a “combatant” then they were also acknowledging a prima facie war crime by that person’s location being – GITMO.

      So the CSRTs were cooked up with “rules” that wouldn’t meet due process anywhere, including not even telling someone why there were thought to be a belligerent or what they were accused of doing and with allowing torture and crazy guys who were getting paid off statements etc. And if, by some bizarre circumstance, there was a hold out on the CSRT “panel” and a detainee was found to be “not a combatant” then they just held another CSRT until they bot the combatant designation. That happened more than once.

      This is also why, when they did get ready to release someone, they were so careful to use the phrase “no longer” and enemy combatant (and why some of the recent court decisions that these guys were NEVER enemy combatants is so significant from a war crimes standpoint).

      So, to get back to your point, if you (the US) were pursuing an actual “war” then you would need for someone to be a belligerent under normal rules of war, to classify them as a POW and ship them out of country. If you wanted to take what was supposed to be a specialty carve out for spies who would normallly have been captured spying, or who were trying to in essence desert and blend in with civilian populations to escape accountability as a POW, and instead have this wholesale application espoused by Goldsmith and others, even to this day, of “unlawful enemy combatants” to whom no laws, civil or military, ever attaches, then you have a big ass problem.

      IOW, you have to first ask, “why” do I want to classify someone who is not caught spying (a situation where you could execute on the spot under military law) as not being subject to POW classification? What is the reason? That’s what no one wants to dig into, but there really isn’t a reason other than to sink into depravity. It’s why Philbin originally went down the “wrong” track for the GWOT crew, when he said you could conduct military commissions bc the GCs would apply.

      But if you want to “use” the military law approach, you have to take some of the other strictures that come with it. Those would include the fact that it is not a war crime and does not make someone a belligerent to do all kinds of things, including fighting in “other” wars (like being a “Chechnyan” terrorist) or to sell arms, etc. Now, if you were operating under civilian law, a whole range of conspiracy and other items that are not military crimes are crimes and do give rise to the ability to charge and try and convict and jail for a long time. But many to most of those avenues are not war crimes or acts sufficient to be deemed to be an enemy belligerent under miltiary law.

      So what we have done in the past, with someone like a Noriega who was not committing military crimes or typical acts of belligerence against the US, was to use the military for the capture, then you turn over to civlian authorities for interrogation and trial.

      So in Afghanistan it started, this odd mesh of “capturing” someone, likely by a home invasion, and exposing them to military interrogation first (but not under the Army field manual requirements) whether or not there were battlefield interrogation issues applicable to them or not, but then holding them without law (the “why” of the unlawful enemy combatant designation) so that they could be abused in some very depraved ways, with the “intelligence” purposes of trying to create spies (with blackmail of pictures of them while they were being victimized with depravity) or trying to get info on al-Qaeda (without any prior reason to believe they knew anything about al-Qaeda and no CSRT if they objected to being deemed al-Qaeda etc.) and if there was no ability to create a spy or to get intel, no harm, no foul, bc no law appplied to them, bc *someone* classified them for *some reason* as being an unlawful enemy combatant. Sodomy, drugging, human isolation experiments – it was all good to go for those to whom no law applied and who could be “deemed” to be “unlawful enemy combatants” by declaration of affiliation. For that, it wouldn’t be much different than having the Germans find one Jewish sabateur and then declaring that all Jews, bc of their *affiliation* with the sabateur, were “unlawful enemy combatants” to whom no law applies.

      So now you shift to Iraq, and you have a much more clear cut “war” against uniformed troops, civilians taking up arms against invading forces, lots of non-Iraqis located in Iraq (just as lots of non-State citizens are located in most countries, most of the time) and an overlay of this criminal group entering into the fray in Iraq. You have an international force (which you also had in Afghanistan, but in a different setting) who you are not bothering to tell that you *disbelieve* the GCs and for whom you are stamping nonforn on everything about depraved abuse that you print out.

      What “should” be happening? Basically, if you want to fight Iraqi forces and Iraqi insurgents and non-Iraqi civiians who took up arms, you should be treating them as POWs and if you do that, you can ship out. But if you are capturing people who you “think” well they “might” know someone who knows someone who knows something about a terrorist group that isn’t al-Qaeda but may work with al-Qaeda now and then … That’s not a person under military law that you can classify as an “unlawful enemy combatant” under the normal military approach of being an out of uniform belligerent. They might be someone that would be a material witness under civilian law, or they might be involved in conspiracy types of activities (which they are now trying to pull into the GITMO *military* proceedings in a way that is completely disingenuous and doesn’t work) that are actionable under civilian law, but not military law.

      So that long ramble goes to – sure, the Saudi guy who really is a belligerent could have been designated a POW and shipped out of country. The Saudi guy who wasn’t a belligerent but was perhaps involved in finance or other activities that don’t make him a belligerent under military law but would make him a criminal conspirator under US civil law could have been rendered TO THE US for the purpose of standing trial for his criminal acts. The Saudi who is there to help deliver aid is a protected person and can’t be shipped anywhere, although there are some provisions for in country detention of protected persons under certain sittuations.

      If the Saudi guy was not taken in battle and protested this designation as a belligerent, he should have had a real trial, with real protections, there- where the people and evidence are located – to object to the status before he was shipped anywhere. If he wasn’t a combatant under military law (although there might be the kinds of more tenuous contacts that would be crimes under civil law) that’s that unless they turn them over to civilian law enforcement (always an option) and render them to trial.

      Or … you could just piss on all that like Goldsmith was willing to do and as he has continued to write op eds and articles espousing.

      Despite the Nakhleh memo, despite all the knowledge he now has about how info was gathered to support the detentions and future depravity cycle, his big “point” of why we shouldn’t have real trials for all those *captured* in many different countries, never rendered for trial and instead transported for the purpose of being able to handle them with depravity and outside of military or civlian law, – his argument is that they will be “Scheherazades”

      Along with his legal opinions, his fairy tale analogies could use some work too.

      Heaven forbid that a GITMO detainee would turn out to be someone who spun stories to save them from abuse by a crazed despot.

      • skdadl says:

        Thank you for writing all that out, Mary. It’s a legal education for me.

        I would note only that a lot of us consider the invasion and occupation of Iraq to have been illegal in the first place, so a prior answer to Box Turtle would be a further question: Why are Americans making any decisions about anything in Iraq?

        Aggressive war (and that’s what “pre-emptive” war is to most of the world) is the first of the war crimes because it entails all the others. Very difficult for Obama to look seriously at that problem, since he is now running the occupation.

  11. klynn says:

    …there is a very fine line between being a victim and being a perpetrator. And this dialectic is one that needs synthesis and resolution if the human race is going to rise above it.

    Well stated. I would add that the “being a victim” portion of your thought requires more explanation. Someone (or group) can really be a victim and project they are the victim (when they are the premeditated perp) or in a hypersensitive state, insist they are the victim when in fact they are an equal criminal participant.

  12. fatster says:

    The Plum LineGreg Sargent’s blog

    EXCLUSIVE: House Dems Planning Major Changes To Secret CIA Briefings Of Congress

    “In a move that could spark another fight with the GOP over CIA intelligence and secrecy, House Dems are quietly preparing to make major changes to the ways the CIA briefs Congress on covert actions, by broadening the pool of members of Congress who will have access to such private briefings, a source familiar with deliberations says.”



    Britain to examine Iraq war errors in inquiry
    strong>British PM Gordon Brown announces long-awaited inquiry into Iraq war errors

AP News
    Jun 15, 2009 06:48 EST

    “British Prime Minister Gordon Brown authorized a long-awaited inquiry into the Iraq war on Monday that aimed to examine mistakes made during and after the 2003 U.S-led invasion.”

    [Includes mention of David Kelly.]


  13. Mary says:

    Surely you’re not saying that the Coalition Provisional Authority was like, you know, a legally unstable institution?


  14. acquarius74 says:

    I need help to decipher this item re Hassan Ghul which I found here at scribd.com. It appears to have originated at History Commons and found in the National Archives, but now withdrawn.

    [title] T4 B17 Hassan Ghul Fdr [folder] – Entire Contents – Withdrawal Notice – 94 Pgs – Intel Cables 302


    RG: 148 ………………………………………….
    Box 00007 Folder: 0017 Document: 11 …………………
    Series: Team 4 files …………………………….
    Copies: 1 Pages: 94 ………………………………….
    ……….ACCESS RESTRICTED …………………………….
    The item identified below has been withdrawn from this file: ………
    Folder Title: [redacted] Gul ………………………….
    Document Date: [blank] ……………………………………..
    Document Type: Intelligence Telegram ……………………………
    Special Media: [blank] ………………………………….
    From: [blank] ……………………………………………
    To: [blank] ……………………………………………….
    Subject: Intelligence re: [redacted] Gul

    In the review of this file this item was removed because access t it is restricted. Restrictions on records in the National Archives are staated in general and specific group restriction statements which are available.

    [end] 302 cables? this “Intelligence Telegram” was 94 pages ???

    The Tags on this article under the History Commons site are 9/11 and 9/11 Commission.

    I hope someone here can make some sense of this.

  15. emptywheel says:

    It looks like those are the files from the 9/11 Commission pertaining to Ghul–I’ll have to look, but I’m betting these are files either from one of the teams or from the Chief Counsel for the Commission.

    The Withdrawal notice is just the way the NARA signals that, for classification reasons, the information has been withdrawn. The withdrawal notice itself will have some indication of contents–just like a Vaughn Index.

    It’s not surprising there are 94 pages there–there are probably 3000 for KSM. And the ”302” may refer to FBI interview files, suggesting both the FBI and the CIA talked to him.

    In any case, one interesting thing is that BushCo was trying to limit the number of detainees the 9/11 Commission coudl refer to by name. Ghul was one of those originally excluded but then added in. The only reference to him, though, ties him to Abu ZUbaydah, which doesn’t say much about his ties to al Qaeda.

    • acquarius74 says:

      Thanks, Marcy. I’ve been searching most of the links in refs in wiki on Hassan Ghul. Lots of conflicting allegations in news releases at that time (late Jan, 2004-Feb 2004). Then, here is George Tenet’s testimony before the Senate Select Intelligence Committee on Feb 24, 2004.. In that testimony he gives a list of detainees who would “never again threaten the American people”. His list: (1) KSM (2) Nashiri (3) AZ
      (4) Hassan Ghul, a senior facilitator who was sent to case Iraq for an expanded al-QA’ida presence there. (5) Harithi and al-Makki [2 people?], the most senior plotters in Yemen, who were involved in the bombing of the USS Cole. (6) Hambali, the senior operational planner in Southeast Asia.

      [yet CIA denies ever having H. Ghul in their custody??].
      Could one of these on this list be Detainee 2?

  16. seesdifferent says:

    These dates seem to conflict with Goldsmith’s accounts. In his book, The Terror Presidency, p. 156, he writes

    “my October 2003 decision, that all Iraqis, including Iraqi citizens who were members of al Qaeda, were “protected persons” under the Fourth Geneva Convention included an exception for members of al Qaeda in Iraq who were not Iraqi citizens.

    I suspect Goldsmith’s book is very self serving, as he paints himself as the great force for good in the DOJ.

  17. emptywheel says:

    No. It doesn’t conflict at all. That was the first one, but there’s a second one he mentions in the book as well (my copy seems to be AWOL right now, but when I find it, I’ll find where he refers to it).

    He was quite clear, IIRC, that there were two rounds on this subject.

  18. Jkat says:

    this old warhorse would like to join the others here in expressing heartfelt appreciation for the hard work marcy puts into tracking all this crap .. and kudos to mad dog ..and bmaz ..and drational as well and to william ockman ..and ..a very special thanks also to mz. mary of KY .. for her continued illumination of some very arcane points and a fine parsing of “the law” ..

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