In a comment to my earlier item, The Disappeared, Cecil Turner asks why I called the 'ghost' detainee in question a 'confirmed POW'. And, re-reading the article I have to say that he's basically right. The New York Times didn't tell us much about the conditions under which the unnamed prisoner was captured, or what his citizenship was, so it seems I jumped to conclusions. And, in fact, I just found this recent Reuters article, Rumsfeld Acknowledges Hiding Iraqi Prisoner which says the detainee is an Iraqi civilian, not a POW.
That doesn't change the bottom line as much as you might think, however. As a civilian internee, he has rights too, under the Fourth Geneva convention, which also don't appear to have been observed. The best case for the US might be Art. 5 of 4th Geneva:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power as case may be.
While this might justify stopping letters home, it doesn't justify hiding the detainee's existence from the Red Cross, or failing to give him an ID number, or deporting him (cf. 4th Geneva, Art. 76: “Art. 76. Protected persons accused of offences shall be detained in the occupied country.”). Also, it would be surprising to hear the US argue that the security situation in Iraq, which we're usually told is so greatly improved, remains so bad as that the security situation would be undermined by letting the Red Cross visit him. Art. 143 says, “Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. Their duration and frequency shall not be restricted.” — have things been that bad all along?.
Of course, for its purposes the administration may have put him into the black hole category of “unlawful combatant,” but I personally do not accept that this category can be used to remove nationals of Geneva Convention signatory states from the reach of those very encompassing agreements on the unilateral say-so of an administration official. I also remain very highly dubious that this can be done even after a military hearing; in any event in this case there appears to have been no such hearing, not to mention none of the follow-on hearings that might be required if the detainee is classed as civilian being held in special circumstances out of extreme military necessity.
I simply do not accept the assertion that membership, much less suspected or reputed membership, in an international criminal organization like al Qaeda, negates a detainees citizenship and its privileges. And if you think about it, that's not a precedent we'd like to set for our enemies to use against us.
[Several other commentators have asked why in my original post I called this a 'technical' war crime. That's not a term of art; I just meant by that to suggest that although I believe this conduct is seriously wrong, and violates the US's international obligations, and might in theory be classed as a war crime, it doesn't seem to me personally be as evil as, say, raping and killing and frankly it's hard to imagine that it would form the centerpiece of any very hypothetical international prosecution if the subject emerges unhurt. In the highly unlikely event that any of the US's conduct towards its prisoners ever were to come before an international body — a procedure limited for the gravest and most serious offenses — it will be because of a substantial pattern of serious violence, injuries, or deaths, not just what is reported so far in the case of this particular 'ghost detainee'.]
