Newsday.com July 12, 2006
New stance on rights
By Tom Brune
Reacting to a recent Supreme Court ruling, the Defense Department shifted its stance and announced yesterday it would apply the Geneva Conventions' minimum standards of humane treatment as a matter of law, not just of policy, to al-Qaida detainees captured in the war on terror.
But in a Senate hearing yesterday, the administration also sought to limit the effect of that ruling, which struck down its military tribunals for terrorists, by urging Congress to pass legislation to ratify the tribunals as they now exist or at least to preserve their restrictions on legal rights for detainees put on trial.
The memo announcing the new stance and the hearing yesterday represent the first steps in what is expected to be a difficult and lengthy process in which the White House and Congress must grapple with fashioning a response to the court's potentially sweeping June 29 decision in Hamdan v. Rumsfeld.
In the memo, Deputy Defense Secretary Gordon England said the court had determined that Common Article 3 of the Geneva Conventions 'applies as a matter of law to the conflict with al-Qaida. '
White House spokesman Tony Snow and other officials denied the memo represented a policy shift.
Yet the White House has said since the Sept. 11, 2001 attacks that it would apply the Article 3 standard as a matter of policy, not as law. And it has refused to apply any of the other Geneva Conventions to the war on al-Qaida and terrorism.
Common Article 3 sets a minimum standard of humane treatment for those in a conflict, banning such things as mutilation, torture and humiliation.
England said the Defense Department already complies with Article 3, though he also required military personnel to adhere to the Article standard and ordered a review due in three weeks to ensure all policies comply with it.
A senior Justice Department attorney raised concerns about the effect arising from the application of Article 3, calling it 'a significant development. '
Steve Bradbury, acting head of the department's Office of Legal Counsel, said the article's language is vague and subject to interpretation - especially the phrase 'humiliating and degrading treatment' - and could ultimately result in prosecution of U.S. military personnel for war crimes or U.S. felonies.
'It's important for Congress to consider how to give definition ... to those phrases which are now criminally enforceable, which now apply to all of our folks around the world in the war on terror,' he told the Senate Judiciary Committee yesterday.
Human rights advocates reacted with skepticism to England's memo, but agreed that the U.S. interpretation of Article 3 likely varies from other countries.
'It is all depends on what the meaning of humane is,' said Georgetown law professor David Cole, a human rights critic of the White House.
Pentagon interrogation policy, Cole said, permits activities such as use of dogs for intimidation, forced nudity and making men wear women's underwear.
'I don't think any international scholar, or indeed any other country, would think those kind of tactics would be humane,' Cole said.
A pact on treatment Those taking no active part in hostilities, including members of armed forces who have laid down their arms, are to be treated humanely without respect to race, religion or gender.
Those involved in hostilities are not to be subjected to cruel treatment, torture and more; humiliating or degrading treatment; the taking of hostages; and the passing of sentences and executions without judgment by a fair court affording judicial guarantees.
The wounded and sick are to be collected and cared for.
An impartial humanitarian body such as the International Committee of the Red Cross may offer its services to parties of the conflict.
Who's protected Members of nations' armed forces, militias and volunteer corps.
Members of organized resistance movements with a commander and a recognizable symbol or flag.
Civilians who follow armed forces, including contractors and journalists.
SOURCES: OFFICE OF THE SECRETARY OF DEFENSE; WWW.GLOBALSECURITY.ORG A CHANGING POPULATION 759 Total numbers of detainees to have passed through Guantanamo 700 Maximum population since start of Afghanistan and Iraq wars 460 Estimated Current population
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