Documents released to PIAC reveal that Major George O’Kane, a military lawyer with the Australian Defence Force, had concerns about the legality of interrogation techniques proposed for prisoners at Abu Ghraib. However, the Australian Government publicly announced that Major O’Kane’s legal opinion was that the interrogation techniques complied with the Geneva Conventions. The Government has never corrected the public record.
The proposed techniques – including sleep management, dietary manipulation and sensory deprivation – are generally regarded under international law as cruel and inhuman treatment and in some cases, torture.
Major O’Kane was in Iraq, working as a legal officer in the office of the US Staff Judge Advocate, Colonel Marc Warren, the senior legal officer in Iraq, when he was asked to provide legal advice in 2003 about the proposed techniques.
Major O’Kane said he believed the techniques would be open to abuse and had inadequate safeguards. He wrote in a legal memorandum dated 27 August 2003 that the techniques ‘substantially compl[y]’ with the Geneva Convention, which imposes absolute standards. He later explained that the reason he did not think the techniques fully complied was because there were no time limits on their use.
The Commanding Officer of the US 205th Military Intelligence Brigade who sought Major O’Kane’s advice had previously been investigated following the death of a detainee in Afghanistan. The same Brigade was later revealed as being at the centre of the abuse scandal at Abu Ghraib.
Speaking inside the Australian Federal Parliament on 30 May 2004, the head of Defence Legal Services, Air Commodore Simon Harvey, said Major O’Kane’s legal memorandum concluded that the proposed interrogation techniques were consistent with the Geneva Conventions.
In subsequent weeks, Defence Minister Robert Hill and senior Department of Defence officials knew Air Commodore Harvey’s statement was inaccurate. However, the Department of Defence made no attempt to correct the public record and refused to publicly release Major O’Kane’s advice without first consulting the United States.
Major O’Kane based his reservations about the legality of the proposed Abu Ghraib techniques on the fact that there was insufficient detail in the US Interrogation Manual about the length of time that interrogators could use techniques such as sleep management and sensory deprivation. Major O’Kane noted that the Australian Interrogation Manual also failed to specify time limits for these techniques and was therefore open to abuse.
Major O’Kane may not have had the appropriate clearance to provide his advice. He was asked to confine his advice to proposed interrogation techniques for one particular individual who was considered a high value detainee. However, Major O’Kane provided general advice and looked at the US Interrogation Manual in general terms.
Moreover, Major O’Kane based his advice on a view of the Geneva Conventions that was inconsistent with the Australian Government’s publicly stated interpretation of international law. This placed Australia in the untenable position of endorsing a particular view about detention treatment and conditions that it simultaneously condemned.
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