US Reverses Policy on Military Detainees
By Demetri Sevastopulo
The Financial Times
Tuesday 11 July 2006
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."
The move, which comes as Mr Bush gets ready to leave Washington for the G8 summit in Russia, is likely to be well received by his allies, including the UK, who have been very critical of Guantanamo Bay.
Alberto Mora, the former Navy judge-advocate general who was one of the most vocal internal critics of the Pentagon's detainee policies, told the FT the move was a "marvellous development".
"We have gained ground with the Detainee Treatment Act, with the Supreme Court [Hamdan] decision and with other intervening steps," said Mr Mora. "But there is no question that this will be very well regarded both by the general public overseas and with our traditional allies and will strengthen to wage successful the war on terror."
The Pentagon has maintained that it treats detainees humanely, and investigates abuses when they come to light. In addition to international and domestic criticism following the Abu Ghraib prison scandal, however, the US military has come under renewed scrutiny recently following allegations that marines murdered 24 Iraqi civilians in Haditha last year and then covered up the incident.
The Pentagon is also investigating a separate allegation that US soldiers raped a young Iraqi woman, before murdering her and three family members, including a young girl.
The policy reversal reflects the increased difficulty the administration is having defending its view that Mr Bush should have unfettered ability to prosecute the war on terror.
In December, the White House lost another major policy battle after John McCain, the Arizona senator, essentially forced the administration to accept his Detainee Treatment Act which prohibited torture. Vice President Dick Cheney and David Addington, one of his top policy advisers, had opposed Mr McCain's legislation.
While Mr Bush declined to apply the Geneva conventions to Taliban and al-Qaeda captives, he ordered in 2002 that "detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva". But his critics argued that the wording of his order provided large loopholes that could be exploited to abuse prisoners.
While the Pentagon order applies to all detainees held by the US military, it does not apply to prisoners held outside the military detention system, such as Khaled Sheikh Mohammed, the alleged mastermind of the September 11 attacks who is being held in a secret Central Intelligence Agency prison. But the Pentagon move could increase pressure on the administration to re-examine CIA detention policies and practices.
The Pentagon memo, which requires senior military officers to ensure that their detention and interrogation policies are compliant with Common Article 3, was ordered by William Haynes, the Pentagon general counsel, who has attracted criticism for his role in developing controversial interrogation techniques.
Mr Haynes, who has been nominated to become a federal judge, faces a critical nomination hearing on Capitol Hill on Tuesday. Until now, he has consistently sided with Mr Cheney in internal disputes in arguing prisoners captured in the war on terror should not receive Geneva protections.
Military Lawyers Prepare to Speak on Guantánamo
By Neil A. Lewis
The New York Times
Tuesday 11 July 2006
Washington - Four years ago, the military's most senior uniformed lawyers found their objections brushed aside when the Bush administration formulated plans for military commissions at Guantánamo Bay, Cuba. This week, their concerns will get a public hearing as Congress takes up the question of whether to resurrect the tribunals struck down by the Supreme Court.
"We're at a crossroads now," said John D. Hutson, a retired rear admiral who was the top uniformed lawyer in the Navy until 2000 and who has been part of a cadre of retired senior military lawyers who have filed briefs challenging the administration's legal approach. "We can finally get on the right side of the law and have a system that will pass Supreme Court and international scrutiny."
Admiral Hutson, one of several current and former senior military lawyers who will testify this week before one of the three Congressional committees looking into the matter, plans to urge Congress to avoid trying to get around last month's Supreme Court ruling.
Beginning shortly after the attacks of Sept. 11, 2001, the military lawyers warned that the administration's plan for military commissions put the United States on the wrong side of the law and of international standards. Most important, they warned, the arrangements could endanger members of the American military who might someday be captured by an enemy and treated like the detainees at Guantánamo.
But the lawyers' sense of vindication at the Supreme Court's 5-to-3 decision is tempered by growing anxiety over what may happen next. Several military lawyers, most of them retired, have said they are troubled by the possibility that Congress may restore the kind of system they have long argued against.
Donald J. Guter, another retired admiral who succeeded Admiral Hutson as the Navy's top uniformed lawyer, said it would be a mistake for Congress to try to undo the Supreme Court ruling. Admiral Guter was one of several senior military judge advocates general, known as JAG's, who after objecting to the planned military commissions found their advice pointedly unheeded.
"This was the concern all along of the JAG's," Admiral Guter said. "It's a matter of defending what we always thought was the rule of law and proper behavior for civilized nations."
One of the more intriguing hearings will be held Thursday as the current top military lawyers in the Navy, Army, Air Force and Marines testify before the Senate Armed Services Committee. The main issue at stake will be whether they express the same concerns of those out of uniform who have been critical of the administration's approach.
Longstanding custom allows serving officers to give their own views at Congressional hearings if specifically asked, and some in the Senate expect the current uniformed lawyers to generally urge that Congress not stray far from the Uniform Code of Military Justice, the system that details court-martial proceedings.
Senator Bill Frist, the Republican leader, told reporters on Monday that he did not expect the Senate to take up any legislation on the issue until at least after the August recess of Congress.
The opportunity to rewrite the laws lies in the structure of the Supreme Court's ruling, which emphasized that Congress had not explicitly approved deviations from ordinary court-martial proceedings or the Geneva Conventions.
The court majority said the military commissions as currently constituted were illegal because they did not have the same protections for the accused as do the military's own justice system and court-martial proceedings. In addition, the court ruled that the commissions violated a part of the Geneva Conventions that provides for what it said was a minimum standard of due process in a civilized society.
In response, some legislators have said they will consider rewriting the law to make that part of the Geneva Conventions, known as Common Article 3, no longer applicable.
"We should be embracing Common Article 3 and shouting it from the rooftops," Admiral Hutson said. "They can't try to write us out of this, because that means every two-bit dictator could do the same."
He said it was "unbecoming for America to have people say, 'We're going to try to work our way around this because we find it to be inconvenient.' "
"If you don't apply it when it's inconvenient," he said, "it's not a rule of law."
Brig. Gen. David M. Brahms, a retired officer who was the chief uniformed lawyer for the Marine Corps, said he expected experienced military lawyers to try to persuade Congress that the law should not be changed to allow the military commissions to go forward with the procedures that the court found unlawful.
"Our central theme in all this has always been our great concern about reciprocity," General Brahms said in an interview. "We don't want someone saying they've got our folks as captives and we're going to do to them exactly what you've done because we no longer hold any moral high ground."
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, which will hold its hearing on Tuesday, said: "The first people we should listen to are the military officers who have decades of experience with these issues. Their insights can help build a system that protects our citizens without sacrificing America's ideals."
Underlying the debate over how and whether to change the law on military commissions is a battle over the president's authority to unilaterally prescribe procedures in a time of war. The Supreme Court's decision was a rebuke to the administration's assertions that President Bush's powers should remain mostly unrestricted in a time of war.
Most military lawyers say they believe that few, if any, of the Guantánamo detainees could be convicted in a regular court-martial.
Lt. Col. Sharon A. Shaffer of the Air Force, the lawyer for a Sudanese detainee who has been charged before a military commission, said she was confident that she would win an acquittal for her client, who is suspected of being an accountant for Al Qaeda, under court-martial rules.
"For me it was awesome to see the court's views on key issues I've been arguing for years," Colonel Shaffer said.
The majority opinion, written by Justice John Paul Stevens, said the two biggest problems with the commissions were that the military authorities could bar defendants from being present at their own trial, citing security concerns, and that the procedures contained looser rules of evidence, even allowing hearsay and evidence obtained by torture, if the judge thought it helpful.
Colonel Shaffer said she was restrained under the rules from calling as a witness a Qaeda informant whose information had been used to charge her client. "I'm going to want for my client to face his accuser," she said, "and for me to have an opportunity to impeach his testimony."