Global Policy Forum

Pentagon Switch on Geneva


By Jim Lobe

July 11, 2006

Tuesday's announcement by the administration of U.S. President George W. Bush that detainees held by the U.S. military at Guantanamo Bay, Cuba, and elsewhere will be treated in accordance with the Geneva Conventions has provoked both hope and scepticism from human rights activists.

While some rights groups hailed the Pentagon's decision to apply the protections of Geneva's Common Article 3 to all detainees in its custody as a significant breakthrough, others said the administration's past record -- particularly its definition of "humane" treatment -- gave them little confidence that the move would make any substantive difference.

Indeed, the fact that senior administration officials, including White House spokesman Tony Snow, denied that the decision constituted a reversal of the administration's previous policy against affording Article 3 rights to terrorist suspects added to the scepticism among some experts. "This looks like a PR (public relations) exercise," said Scott Horton, an international law professor at Columbia University, who has played a major role in the debate over the application of the Geneva Conventions to the administration's "global war on terror".

"Given our experience dealing with this administration and the DOD (Department of Defence) on these issues for a period of several years now, we're best advised to be sceptical and cautious," he told IPS. Horton and other analysts also noted that Tuesday's announcement applied only to detainees in military custody and not to those held by the Central Intelligence Agency (CIA) in various undisclosed locations around the world. The CIA has reportedly used "water-boarding" and other aggressive interrogation techniques that human rights groups say amount to torture.

"Today's action is a significant step," said Larry Cox, the executive director of the U.S. section of Amnesty International (AIUSA), in a more hopeful take on Tuesday's announcement. "However, we urge that these basic protections (under Article 3) apply to all detainees, including those in secret CIA custody." The decision, which came in the form of a memo by Deputy Defence Secretary Gordon England, followed a Supreme Court ruling 10 days ago that the administration lacked the constitutional authority to establish military tribunals for terrorist suspects without the explicit approval of Congress.

The same ruling, Hamdan vs. Rumsfeld, also asserted that all detainees in the war on terror were entitled as a matter of law to the due process protections guaranteed by Article 3 of the Geneva Conventions which, among other provisions, bans the imposition of sentences by courts that fail to provide "judicial guarantees which are recognized as indispensable by civilized peoples" -- a standard on which, the court suggested, the Pentagon's military commissions fell short. Article 3 also requires that all detainees be treated "humanely" under all circumstances and bans "outrages upon personal dignity, in particular humiliating and degrading treatment."

Until Tuesday's release of the England memo, which calls for "all DOD personnel (to) adhere to these standards," the administration had denied that detainees in the war on terror were entitled to Article 3 protections. In a February 2002 directive prepared by political appointees in the Justice Department, the Pentagon and the White House over the objections of then-Secretary of State Colin Powell and senior military lawyers, Bush ordered that Article 3 standards should "not apply to either al Qaeda or Taliban detainees." Instead, the directive ordered that detainees be treated "humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."

[On Tuesday, the White House announced that it had formally withdrawn part of the 2002 directive and accepted that Article 3 protections now applied to al Qaeda and Taliban detainees.] The administration has since insisted that all detainees have indeed been treated "humanely" despite a flood of reports by human rights groups, the Federal Bureau of Investigation, former detainees, and detainee attorneys about practices ranging from sexual humiliation and exposure to extreme temperatures to physical assaults and water-boarding, in which the subject is made to believe that he is drowning. A 2005 report by the deputy commander of the U.S. Southern Command, which has jurisdiction over Guantanamo, such techniques were reviewed and deemed "humane."

"The problem is, they have hijacked the term 'humane,' and pumped it full of meaning that no one else in the world shares," according to Horton. "They take words that we think we all understand and they give it a secret and opposite meaning." He pointed to statements by Snow and other senior officials Tuesday as evidence that England's memo may indeed have no substantive impact on the treatment of detainees.

"It's not really a reversal of policy," Snow told reporters, while Pentagon spokesman Brian Whitman stressed that, "Humane treatment has always been the standard for detention and interrogation operations of the Defence Department." Similarly, Daniel Dell'Orto, a senior Pentagon lawyer, insisted Tuesday at a Senate hearing on the future of the military tribunals that the administration already complies with Article 3. "The memo ...doesn't indicate a shift in policy," he said. "It just announces the decision of the court." He added that U.S. military forces currently hold roughly 1,000 detainees worldwide, including some 460 at Guantanamo.

Those statements were clearly of concern to Ari Cover, an expert at Human Rights First (HRF) who noted that the England memo, which endorses Article 3, refers directly to Bush's 2002 directive that explicitly denied Article 3 protections to al Qaeda and Taliban detainees even while it insisted that they would be treated "humanely."

"My question is, how do these two memos square with each other?" he said. "I'm hopeful that they're at least saying we're going to comply with the Supreme Court, and hopefully it's a lot more than that." He suggested that the lack of clarity may reflect the continuation of an internal debate within the administration between hard-liners, led by Vice President Dick Cheney, who oppose Geneva protections for suspects in the war on terror, and the State Department and uniformed military who have long supported them.

In this view, Tuesday's announcement may indeed have been PR designed mainly to persuade Congress that the administration is acting in good faith and that only minor changes to the Pentagon's military tribunals are needed to satisfy the court's concerns. It may also be designed in part to quiet popular outrage in Europe -- including appeals by a number of leaders there that Guantanamo be closed -- at U.S. detention practices in advance of Bush's trip next weekend to the Group of Eight summit in St. Petersburg, Russia.

Still, activists remain hopeful that Tuesday's announcement indicates that the pro-Geneva faction within the administration has gained the upper hand. "I think it's moving back towards where it should have been all along," said Katherine Newell-Bierman, who covers detention policy for Human Rights Watch. "I think the military wants this; they want standards that reflect their values and training."

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