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A U.S. Shift on Detainees

Prepared by: Lionel Beehner
July 11, 2006

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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.

The Hamdan ruling amounted to serious judicial review of presidential authority, as this Backgrounder explains. Deborah Pearlstein of Human Rights First, writing in The American Prospect Online, called it a "blockbuster as much for its reasoning as its effect." Geoffrey Corn of South Texas College of Law, wrote that the Bush administration's decision to scrap some of the Geneva Conventions after 9/11 "undermined the symmetry of the law of war." Yet David Rivkin and Lee Casey, a pair of DC-based lawyers, argued in The Wall Street Journal that "treating al-Qaeda and its allies as civilians entitled to trial in the civilian courts, or even in the regular courts-martial, would effectively legitimize the illegal and barbaric type of asymmetric warfare they practice." John Yoo, a former legal counsel at the Justice Department, accused the Supreme Court of "judicial micromanagement" (LAT).

White House Press Secretary Tony Snow said the decision to grant detainees Geneva protections was not "really a reversal of policy" (WashPost). Some experts say the decision reflects the upcoming midterm elections and waning public support to indefinitely hold prisoners at Guantanamo. The decision also has global resonance because Guantanamo has become for many a "symbol of malignant U.S. power," says CFR Senior Fellow Julia Sweig.

The Republican-led Congress now faces two tough choices, writes Richard B. Schmitt of the Los Angeles Times, "both fraught with risk": either approve a tribunal similar to a military commission, which may be overturned by the Supreme Court, or establish something more akin to a court martial, which runs a greater risk of suspected terrorists going free.

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