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Homeland Security

Analysis: A U.S. Shift on Detainees

Council on Foreign Relations

July 11, 2006
Prepared by: Lionel Beehner

The Bush administration decided after September 11, 2001 that associates of al-Qaeda or the Taliban did not deserve all of the rights accorded to combatants during wartime under the Geneva Conventions. Suspected terrorists taken into U.S. custody were labeled "unlawful combatants" and stripped of their due process.

But in a surprising policy shift, made public in a memo sent by Deputy Defense Secretary Gordon England to senior defense officials, the Pentagon has decided to grant all detainees held in U.S. custody (FT)—in Guantanamo Bay as well as in military detainment centers around the world—protections afforded them by Common Article Three of the Geneva Conventions. The article prohibits the inhumane treatment of prisoners of war and provides some basic legal rights at trial. "Quoting [Common Article Three] is like quoting the Bible for international lawyers," says Peter Danchin, a Columbia University legal expert. The Pentagon's policy does not apply to detainees held outside the U.S. military system or in secret CIA-run detention centers. England's memo follows the Supreme Court's Hamdan v. Rumsfeld ruling that the White House's effort to try detainees at Guantanamo Bay in secret military commissions was unlawful and in violation of the Uniform Code of Military Justice. News of the memo coincides with the opening of Senate hearings on the Hamdan decision. Congress could rework U.S. law to approve the military commissions or even reverse the Pentagon's decision to offer Geneva protections to detainees, but experts say both are unlikely given the growing unpopularity of the Guantanamo Bay detention facility.


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Copyright 2006 by the Council on Foreign Relations. This material is republished on with specific permission from the Reprint and republication queries for this article should be directed to

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