In Big Shift, U.S. to
Follow Geneva Treaty
for Detainees
By NEIL A. LEWIS and
JOHN O’NEIL, NYTimes on the Web, July 11, 2006
WASHINGTON -- In a sweeping
change of policy, the Pentagon has decided that it will treat all detainees in
compliance with the minimum standards spelled out in the Geneva conventions, a
senior defense official said today.
The new policy comes on the heels of a Supreme Court ruling last month
invalidating a system of military tribunals the Pentagon had created to try
suspected terrorists, and just before Congress takes up the question of a
replacement system in a Senate Judiciary Committee hearing today.
As part of its decision, the court found that a key provision of the Geneva
conventions, known as Common Article 3, did apply to terror suspects,
contradicting the position taken by the Bush administration.
The Pentagon memo allowing detainees the protections of Article 3 was first
reported today by The Financial Times.
In 2002, President Bush declared that members of Al Qaeda and other terror
suspects seized during the invasion of Afghanistan were “illegal combatants,’’
and so were not entitled to the protections of the Geneva conventions, which
among other things set forth rules for the treatment of prisoners of war.
The main thrust of the recent Supreme Court ruling, in a case known as Hamdan v.
Rumsfeld, was that the administration had exceeded its authority by creating a
system of tribunals without the approval of Congress. But the court also
declared that the suspects fell under Article 3, which applies to all “armed
combatants,’’ and that detainees were able to assert their rights under Article
3 in federal court.
President Bush last week said that he “would comply’’ with the court’s ruling,
but he has given no details of how he would do so.
Since the court’s ruling, Republicans have appeared divided over whether to
simply seek Congressional approval for a slightly modified tribunal system or to
adopt a version of traditional courts-martial instead. The Pentagon memo
reported today may simply reflect a decision that any new system that did not
afford detainees the protections of Article 3 would not survive challenge in
court.
Article 3 guarantees detainees a minimum level of rights expected in a civilized
country. But what that includes and what procedures should govern their
trials is expected to be the subject of lively Congressional debates all summer,
beginning with today’s Senate Judiciary Committee hearings.
Unlike four years ago, when the Bush administration formulated its plans for
military commissions at Guantánamo Bay, Cuba, the debate now seems certain to
include the views of the military’s most senior uniformed lawyers, whose
objections were brushed aside earlier.
John D. Hutson, a retired rear admiral who was the top uniformed lawyer in the
Navy until 2000, is one of a number of retired senior military lawyers who have
filed briefs challenging the administration’s legal approach.
“We’re at a crossroads now,” Admiral Hutson said. “We can finally get on
the right side of the law and have a system that will pass Supreme Court and
international scrutiny.”
He and some other current and former senior military lawyers are scheduled to
testify this week before one of the three Congressional committees looking into
the matter. He said he 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 breached international standards.
Most important, they warned, the plan could endanger members of the American
military who might someday be captured by an enemy and treated the way detainees
at Guantánamo have been.
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, Admiral Hutson’s successor, who has also since retired, 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, whose advice against forming the military commissions went 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, when the current top
military lawyers in the Navy, Army, Air Force and Marines are due to testify
before the Senate Armed Services Committee. The main question will be
whether they express the same concerns as those now out of uniform.
Longstanding custom allows serving officers to give their own views candidly 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 before the August
recess of Congress.
Since the Hamdan ruling was announced, some legislators had said they would
consider rewriting the law specifically to make Article 3 of the Geneva
Conventions, 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 sidestep the court’s
ruling.
“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 today, 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 would be 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.”
Neil A. Lewis reported from Washington for this article and
John O’Neil from New York. Eric Schmitt contributed reporting from Washington.
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