July 11, 2006

A Ray of Hope?

Could a smidgen of decency, honor and best practices have (astoundingly belatedly) made their way to senior levels of the Pentagon with regard to detainee policy? Demetri Sevastopulo writes in the FT:

The Pentagon has decided in a major policy shift that all detainees held in US military custody around the world are entitled to protections under the Geneva Conventions, according to two people familiar with the move.

The FT has learned that Gordon England, deputy defence secretary, sent a memo to senior defence officials and military officers last Friday, telling them that Common Article 3 of the Geneva Conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.

This reverses the policy outlined by President George W. Bush in 2002 when he decided members of al-Qaeda and the Taliban did not qualify for Geneva protections because the war on terrorism had ushered in a “new paradigm…[that] requires new thinking in the law of war”.

The policy U-turn comes on the heels of the Supreme Court ruling last month that the military commissions Mr Bush created to try prisoners at Guantanamo Bay contravened both US law and the Geneva Conventions.

The White House had argued that Mr Bush, as commander-in-chief, had the authority to convene the military commissions. Critics who rejected this interpretation said the commissions were unjust because, for instance, defendants were unable to see all the evidence levelled against them.

In a stunning rebuke of Mr Bush, the Supreme Court ruled 5-3 that his administration had overshot its authority in constituting the controversial commissions, concluding that they did not offer defendants sufficient legal rights.

The court also suggested that the administration work with Congress to reach a solution that would address the problems, including the introduction of evidence.

Arlen Specter, the Republican chairman of the Senate judiciary committee, is scheduled on Tuesday to kick off a series of Congressional hearings that will examine the Supreme Court ruling in the case of Salim Ahmed Hamdan - the former driver of Osama bin Laden who became the first detainee brought before a military commission – and its implications for dealing with the 450 detainees remaining at the Guantanamo.

In the wake of the Supreme Court decision, legal experts had disagreed about whether the ruling meant that Geneva protections should be given to only those detainees brought before the military commissions, or to all detainees held at Guantanamo Bay and other US military detention facilities around the world.

That question now appears moot in light of the Pentagon move. Congress could conceivably still rewrite US law to eliminate the Geneva protections, but such a move would generate huge international criticism.“This memo was a prudent and responsible thing to do,” said a former Bush administration official with knowledge of the memo.

“Humane treatment is at the centre of the Pentagon’s directives and procedures, but the court’s ruling expanded previous understanding of the applicability of Common Article 3 so this memo was an important next step. It is now up to Congress to provide statutory clarity if possible.”

Of course, my trust of various Administration players on this issue is near nil, so take this with a big grain of salt, and let us all be sure to monitor how this issue plays out step by step, day by day. With David Addington and others still enjoying significant power, that is obligatory, alas. As I had previously written:

We need to monitor, very, very closely, the machinations emitting from certain quarters of the Executive Branch through the end of Bush's term. There are many smart, honest, fair, moderate Republicans fighting the good fight internally, the Mora's have shown us, and we need to do our part to bolster them however and whenever possible. The stakes are too high, and some of the key players, alas, we've now learned beyond any doubt, will stoop to very mendacious behavior indeed in pursuit of their misguided goals.

True then, true now. Especially as this is an election year, and all the predictable Congressional cretins will be gearing up to portray the Democrats (or even serious Republicans like John Warner or John McCain) as being 'pro-terrorist rights', or whatever, like know-nothing opportunists of the lowest order.

NB: Also, we need to better understand how the new rules would impact the 'OGAs', as they're called....