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Administration Prods Congress to Curb the Rights of Detainees    [

    US: Pentagon Applies Geneva Rules to Detainees
    Human Rights Watch

    Tuesday 11 July 2006

Those in CIA custody must also be covered.

    New York - The Bush administration's belated decision to recognize the applicability of the Geneva Conventions to terrorism suspects in military custody is a step forward, Human Rights Watch said today. But because the Pentagon memorandum that codifies the change does not extend to detainees held by the Central Intelligence Agency (CIA), it represents only partial compliance with the recent U.S. Supreme Court decision in Hamdan v. Rumsfeld.

    "The Pentagon's decision to apply the Geneva rules to anyone captured on the battlefield is welcome news for soldiers around the world," said Joanne Mariner, terrorism and counterterrorism director at Human Rights Watch. "The Geneva rules protect everyone taken into custody in wartime, including American servicemen and women."

    The administration's decision is an important reversal from past policy. In January 2002, Secretary of Defense Donald Rumsfeld announced that detainees captured in Afghanistan were "unlawful combatants" who were not entitled to protection under the 1949 Geneva Conventions governing the humane treatment of prisoners. Human Rights Watch emphasized at that time that the U.S. approach was tragically shortsighted. By ignoring its obligations under the Geneva Conventions, the United States was undercutting the viability of these crucial international protections.

    The July 7 memo, signed by U.S. Deputy Defense Secretary Gordon England, instructs recipients to ensure that all Department of Defense (DOD) policies, practices and directives comply with Common Article 3 of the Geneva Conventions. "You will ensure that all DOD personnel adhere to these standards," the memo says, citing the Supreme Court's decision in Hamdan.

    Notably, the Pentagon memo asserts that Defense Department policies and practices already comply with Common Article 3. This claim severely undercuts the administration's assertion, made in current debates over the Hamdan ruling, that compliance with Common Article 3 would impose an unreasonable burden on U.S. troops.

    Common Article 3 provides that all detainees, whether prisoners of war, civilians or so-called unlawful combatants, are legally entitled to humane treatment in all circumstances. They may not be subject to "cruel treatment and torture" or "outrages upon personal dignity, in particular, humiliating and degrading treatment."

    While the United States has consistently claimed that it treats detainees humanely as a matter of policy, its views of what constitutes humane treatment have been far off the mark. Bush administration officials have, for example, claimed that "waterboarding" (suffocating a person until he believes he is about to drown) is not torture. In a November 2002 memorandum to Rumsfeld, Defense Department General Counsel William J. Haynes also stated that abusive techniques such as forced nudity and 20-hour interrogation might also "be legally available."

    Human Rights Watch expressed concern that the Pentagon's recognition of the applicability of Common Article 3 only covered detainees in U.S. military custody, and not those held by the CIA. Some three dozen terrorist suspects are believed to be in CIA custody in secret prisons abroad, and there have been numerous, credible allegations that they have been subject to torture.

    Human Rights Watch also noted that many CIA and military detainees were not captured as part of an armed conflict. Although the U.S. government has asserted that anyone apprehended for involvement in terrorism may be treated as an enemy combatant, no matter where they are found and regardless of the circumstances, this open-ended expansion of the concept of armed conflict has no basis under international law.

    Human Rights Watch pointed out that a number of detainees held at Guant a1namo and in Iraq were captured during international armed conflicts, and thus merit the protections of the Third or Fourth Geneva Conventions. Those conventions extend to all combatants captured in international armed conflicts, even those who are deemed to be unprivileged combatants not entitled to prisoner-of-war status.

    Because terrorist groups are not states, other military operations against them are covered by Common Article 3 of the Geneva Conventions, which governs armed conflicts that are not between two states. Those detained as a result of such military operations must be protected from mistreatment as provided under Common Article 3.

    The Pentagon's policy change goes some way toward bringing Defense Department policies into compliance with the Supreme Court's recent ruling in Hamdan v. Rumsfeld. In that decision, the court ruled that the military commissions established at Guant a1namo Bay, Cuba by President George W. Bush were illegal under both U.S. military law and the Geneva Conventions. In reaching this conclusion, the court found that Common Article 3 to the Geneva Conventions applies to the armed conflict with al-Qaeda.

    "This policy change does not impose new burdens on U.S. soldiers, nor will it impede their effectiveness," Mariner said. "Rather, it enhances U.S. moral authority at a time when that authority has been under serious question."

 

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    Administration Prods Congress to Curb the Rights of Detainees
    By Kate Zernike
    The New York Times

    Thursday 13 July 2006

    Washington - A day after saying that terror suspects had a right to protections under the Geneva Conventions, the Bush administration said Wednesday that it wanted Congress to pass legislation that would limit the rights granted to detainees.

    The earlier statement had been widely interpreted as a retreat, but testimony to Congress by administration lawyers on Wednesday made clear that the picture was more complicated.

    The administration has now abandoned its four-year-old claim that members of Al Qaeda are not protected under the Geneva Conventions, acknowledging that a Supreme Court ruling two weeks ago established as a matter of law that they are. Still, administration lawyers urged Congress to pass legislation that would narrowly define the rights granted to detainees under a provision of the Geneva Conventions known as Common Article Three, which guarantees legal rights "recognized as indispensable by civilized peoples."

    The maneuvering now under way was prompted by that Supreme Court decision, which struck down the tribunals the administration had established for terror suspects at Guant a1namo Bay, Cuba.

    The court left it to Congress to decide what kind of trials to set up for detainees and what protections they should be granted in interrogations and handling before trial.

    Administration lawyers have argued that the "most desirable" solution would be for Congress to pass a law approving the tribunals that the court said the president could not establish on his own, proceedings that would grant minimum rights to detainees.

    But some leading senators said they believed that the White House stance might still be evolving, despite the public pronouncements by the lawyers who appeared before Congress. In particular, they thought the White House might be open to a solution that would abandon the tribunal approach in favor of one that would modify court-martial procedures to reflect the realities of putting terror suspects on trial.

    "I wouldn't say that that testimony would set the final parameters of where the administration will go on this," said Senator John Warner of Virginia, the chairman of the Armed Services Committee.

    As President Bush headed to Europe on Wednesday, his spokesman, Tony Snow, said, "The White House is now working with Congress to try to come up with a means of providing justice for detainees at Guant a1namo in a manner that's consistent with the Supreme Court's ruling" in the case, Hamdan v. Rumsfeld.

    In addition to guaranteeing legal rights, Common Article Three prohibits "outrages upon personal dignity, in particular, humiliating and degrading treatment." In testimony, administration lawyers said that the article was too vague, and that because failure to comply with Common Article Three was a violation of the War Crimes Act, applying the article to detainees could lead to American troops being charged with felony crimes for interrogation tactics that might be argued to be too harsh.

    "Congress needs to do something to bring clarity and certainty to Common Article Three," Steven G. Bradbury, an acting assistant attorney general, told the House Armed Services Committee on Wednesday.

    Administration lawyers argued that the White House's statement Tuesday night was not a shift, but an announcement and an interpretation of the court's decision. In an interview, Senator Lindsey Graham, Republican of South Carolina, said he agreed.

    "I think what they're saying is, Until we get further direction we're going to do the following," Mr. Graham said. "That doesn't preclude them or us from giving definition."

    The outcome of the debate could affect detainees around the world. The Pentagon holds about 1,000 Qaeda and Taliban detainees at Guant a1namo and at bases in Afghanistan. An estimated three dozen terror suspects are believed to be held by the C.I.A. at secret sites abroad.

    In a week of hearings on Capitol Hill, administration lawyers have argued that the best way to bring detainees to trial after the court's ruling would be for Congress to ratify the military commissions the court struck down, with what Daniel J. Dell'Orto, a Pentagon deputy general counsel, described as "minor tweaking."

    But several scholars and military lawyers have said that the best way to meet the court's requirements on providing legal and human rights to detainees would be to start with the court-martial procedure set up in the Uniform Code of Military Justice and modify that.

    Several lawmakers have said that only a solution that extended Geneva protections to detainees would survive another court challenge.

    "It's got to be dealt with so that we do not face a future court challenge, and also so that the international community recognizes our credibility in dealing with these things," said Senator Warner, whose Armed Services Committee will hold hearings on the issue on Thursday.

    Military lawyers, human rights groups and some lawmakers have warned that an effort by Congress to limit the rights granted to terror suspects under the Geneva Conventions would blacken the United States' reputation internationally, by effectively announcing to the world that it was reneging on a fundamental and commonly held notion of human rights.

    "We should embrace Common Article Three and sing its praises from the rooftops," Rear Adm. John D. Hutson, a former judge advocate general of the Navy who is retired, told the Armed Services Committee. "To avoid it or try to draft our way out of it is unbecoming the United States."

    But administration lawyers argue that the vagueness of the language in the provision - including the right to "judicial guarantees which are recognized as indispensable by civilized peoples" - opened the way to problems.

    "We just think as you approach these issues, you should give definition and certainty to these issues," Mr. Bradbury told the Senate Judiciary Committee on Wednesday.

    Even some Republicans who are fighting the administration's approach on establishing trials for the terror suspects agree on the need to limit the application of Article Three.

    Senator Graham, who pointedly warned administration lawyers that the president would not win by fighting for his approach on trials, said in interviews that Common Article Three must be "reined in." He said it would make death penalty crimes of current interrogation techniques, including keeping detainees awake and forcing them to sit in extremely hot or cold cells - methods he referred to as "things that are not torture but are aggressive."

    "What we need to do is take the ruling of Hamdan and define it so that people will not be unfairly prosecuted because they didn't know what was in bounds or not," Mr. Graham said.

    Mr. Graham said defining Article Three would be "the hardest part" of the debate on how to bring detainees to trial. He suggested that Congress could limit it in a way that resembled the language of the measure setting standards for the treatment of detainees that was written by Senator John McCain, Republican of Arizona, and signed into law last year.

    "It says that every detainee will be treated humanely and that cruel, inhumane treatment will not be allowed against detainees," Mr. Graham said. "Common Article Three with its language goes well beyond the McCain standard."

    Mr. Bradbury and Mr. Dell'Orto, too, expressed a preference for Mr. McCain's language.

    Legal experts agree that the White House's announcement that it would give Article Three rights to detainees puts future cases of detainee abuse, like those at the Abu Ghraib prison in Iraq in 2004, into the category of war crimes. It raises the stakes, they said, for how American troops treat detainees in military custody.

    "This isn't a 'trust me' kind of undertaking anymore," said Diane Orentlicher, a professor of law at American University in Washington. "It's now a legal obligation."