WASHINGTON, July 12: A US policy U-turn and an admission that the Geneva Conventions do apply to Al Qaeda suspects raised a new thicket of questions on Wednesday and clouded the legal foundation of the ‘war on terror’.

While the decision announced on Tuesday was greeted as a famous victory by the US administration’s foes and rights groups, the status of many suspects, many scooped off the battlefields in Afghanistan in 2001, remained unclear.

Principally, it was uncertain whether the US reversal would apply to some of the most prized captives — like September 11 mastermind Khalid Sheikh Mohammed, believed to be held in a secret location by the CIA.

A CIA spokeswoman refused to comment on the ramifications of the memo sent by deputy defence secretary Gordon England, which requires military personnel to adhere to Common Article Three of the 1949 Geneva Conventions.

The administration had previously declared in an order by President George W. Bush in February 2002 that the Geneva Conventions ‘do not apply’ to Al Qaeda or Taliban detainees.

But in a statement to the New York Times late on Tuesday, the White House said ‘as a result of the Supreme Court decision, that portion of the order no longer applies’.

The administration said its decision was the result of a US Supreme Court decision this month outlawing military commissions set up to try terror suspects, partly on the grounds they infringed the Geneva Conventions.

White House officials could not be immediately reached for comment on the scope of the decision.

But rights groups said the impact of the memo was clear.

“If the standard applies, as the Supreme Court held it did, enforced disappearances and incommunicado detention violate that standard,” said Jen Daskal, advocacy director for Human Rights Watch in the United States.

“At a minimum, the government needs to now start providing ICRC access to these prisoners,” she said.

But the legal position — which would be tested if the International Committee of the Red Cross (ICRC) requested access to a secret CIA prison — and how the government would act remain uncertain, analysts said.

“I don’t think it is 100 per cent clear,” said Michael Ratner, a human rights lawyer and president of the Centre for Constitutional Rights, which represents a number of Guantanamo Bay detainees.

Michael Mello, a Vermont Law School professor, said the England memo further clouded the legal foundation of the US global anti-terror campaign, already thrown into turmoil by the Supreme Court verdict in the case of Al Qaeda suspect Salim Ahmed Hamdan, who challenged the commission set up to try him.

“If I had to choose only one word to describe the legal world right now with respect to the war on terror and military commissions, in particular, I think it would be ‘uncertainty’,” Mello said.

“In an area of the law which is this important and this high profile, uncertainty is not a good thing.”

Ratner said the administration may simply be forced to extend protections of the Geneva Conventions to some of the most prized and high-security prisoners.

“The Supreme Court was very clear in its reasoning that it applied to everybody. They may not have a choice except to say ‘it applies everywhere, including to people held by the CIA, and we are complying with it’.

“That is most likely what they are going to say, because this is the Supreme Court of the United States.”

Asked whether administration lawyers could finesse the issue of the conventions, Mello said: “I don’t see how you can make that argument with a straight face in light of the US Supreme Court’s decision.”

Another area of contention is the administration’s position that it was already applying the spirit of Article Three of the Geneva Conventions to ‘war on terror’ suspects, or unlawful combatants, as it declared them.

Article Three outlaws ‘violence to life and person’ of detainees, including ‘cruel treatment and torture’ and ‘outrages on personal dignity, in particular humiliating and degrading treatment’.

Administration supporters have denied that some techniques used to interrogate terror suspects amount to torture.

Ratner said the administration was being forced into a corner, to avoid opening CIA operatives to legal jeopardy under US laws which take as a base the Geneva Conventions.

“I would guess that lower-level people who carried out a lot of this stuff are going to be nervous,” he said.—AFP