U.S. Says It Will Adhere to Geneva

The Bush administration acknowledged Tuesday that it was legally obligated to apply Geneva Convention protections to detainees being held at Guantanamo Bay and elsewhere, reversing a position it has held tightly for more than four years.

But it declared that the shift would not significantly change the way it treated captives because it was already meeting that standard -- a position that put it at odds Tuesday with key Democratic as well as Republican members of Congress.

Those critics charged that the administration should ease its tough confinement tactics and drop its military commission system for trying detainees and replace it with the standard U.S. military justice system.

“If you fight that approach, it’s going to be a long, hot summer,” said Sen. Lindsey Graham (R-S.C.), in a tense exchange with a Justice Department official at a congressional hearing.

The conflict came as the administration and Congress prepared to respond to a landmark Supreme Court decision last month that ruled the administration’s system of prosecuting detainees violated U.S. law and the Geneva Convention.

The Supreme Court ruled that the fight against Al Qaeda was covered by a portion of the convention called Common Article 3, which governs wars involving combatants not tied to nation states, and suggested that Congress impose new rules for the military trials. Tuesday’s confrontation, at a hearing of the Senate Judiciary Committee, is expected to be repeated before other congressional committees this week and through the summer, before any possibility of a resolution.

The unexpected resistance from a bipartisan group of senators reflects a growing concern among lawmakers that treatment of detainees is becoming a foreign policy problem.

Uniformed military lawyers, who have opposed administration policies within the Pentagon over the last four years, also have convinced many lawmakers that American soldiers abroad could be at greater risk of abuse if foreign fighters captured by the U.S. were not granted internationally recognized rights.

But the rebuff also is a sign that many senators, including several Republicans, remain angry at the White House for not consulting Congress on a wide range of terrorism war policies. Similar tension erupted last year over a proposal by Sen. John McCain (R-Ariz.) to ban torture in interrogations, a fight Congress ultimately won.

The decision to extend convention coverage to detainees came in a memorandum issued by Gordon England, the deputy Defense secretary. The Pentagon acknowledged that the Supreme Court decision had forced its hand, and ordered that all personnel and policies adhere to the convention’s standards.

But the administration at the same time gave almost no ground. The Pentagon said that other than the military commissions struck down last month, all of its other detainee policies -- from interrogations to medical treatment -- already complied with the convention’s strictures. Critics have assailed administration interrogation and detention techniques as illegal under U.S. and international law, including convention standards.

In the area of the military commission trials, the administration said it wanted to retain existing policies for dealing with detainees charged as war criminals. In the contentious Judiciary Committee hearing, administration lawyers urged Congress to pass legislation that would largely continue the system.

The insistence on sticking with the old framework was rebuffed by Graham, the congressional Republicans’ point man on the issue, who angrily warned the administration that its stance “would be a mistake” and that it faced a bruising fight with Congress.

“We are not going to respond -- at least I’m not going to respond -- to some product that was enacted without any consultation,” said Graham, a former military lawyer.

The administration shift on convention protections also came as Bush prepared to meet in Russia with the Group of 8 major industrial powers. European allies, including Germany, where Bush will visit before traveling to the G-8 meeting in Russia, have been critical of the U.S. treatment of detainees at Guantanamo and elsewhere and its stance on the convention

Despite its shift on the convention, the administration moved to reassert its authority over detainee policy. Administration lawyers on Capitol Hill warned that the Supreme Court ruling would make it harder on soldiers.

Steven G. Bradbury, head of the Justice Department’s office of legal counsel, told the Judiciary Committee that Common Article 3 was “inherently vague” on how to treat detainees and was open to multiple interpretations. Bradbury also said the article provided much more limited rights than the rest of the treaty.

The administration remained silent on whether it had agreed to extend coverage to captives believed to be held by the CIA in undisclosed locations. A CIA spokesman declined to comment.

Bradbury indicated that closer adherence to the convention would not affect so-called rendition policies under which captives are flown to third-party countries -- sometimes dictatorships known for human rights violations -- for questioning and detention.

Geneva Convention experts challenged the administration’s narrow interpretation of the Supreme Court ruling and Common Article 3’s protections, saying although the White House may be abiding by the letter of the law, it was ignoring the convention’s spirit.

“Common Article 3 is not about them and what they do; it is about what we are and what we do,” Harold Koh, dean of the Yale Law School, told the Senate Judiciary committee. “Some have said, ‘Well, terrorists have not signed Common Article 3.’ Well, whales have not signed the whaling convention. But it’s about how we treat them and how we’re obliged to treat them.”

Even with the narrow interpretation, legal experts said the biggest effect of the Pentagon’s order probably would come in the area of interrogations.

Before the Supreme Court decision, the administration was engaged in an internal debate over a new interrogation manual for U.S. soldiers. Some senior officials in the White House and Pentagon argued that Common Article 3’s prohibition against “humiliating and degrading treatment” should not be included in the manual.

The Pentagon would not comment on how the new order would affect the release of the new manual, which has been repeatedly delayed.

Although the finding appeared likely to help the case of those within the administration backing the prohibition’s inclusion in the manual -- a group believed to include England -- officials said the situation was fluid.

Indeed, Bradbury said the administration still wanted “coerced” confessions to be allowed to be introduced in war crime and other detention hearings involving Al Qaeda and Taliban captives.

Lawyers defending Guantanamo detainees expressed disappointment in the administration’s stance, saying they believed the application of the Geneva Convention should allow more access by both attorneys and human rights groups to those being held.

“I think it’s a public relations stunt,” Mark Denbeaux, a professor at Seton Hall Law School who represents two detainees.

Other defense lawyers said the finding may help their efforts to get detainees a hearing in front of federal courts. All Guantanamo captives are being held after an administrative tribunal determined they were enemy combatants. Those tribunals have been conducted without defense lawyers or normal court procedures.

Bill Goodman, legal director of the Center for Constitutional Rights, which also represents Guantanamo detainees, said the new Geneva Convention policy may help get those hearings overturned because Common Article 3 requires detainees to appear before “regularly constituted courts” -- not specially created ad hoc bodies.

Bradbury said the Pentagon should be left to set detention hearing procedures. But Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee, said he doubted Congress would be willing to allow the Defense Department to continue setting such rules on its own.

As lawmakers prepare to grapple with the issue for the remainder of the summer, there were few signs of consensus. Graham’s proposal for war crimes trials based on the court-martial system is among leading proposals in the Senate.

Specter has proposed new measures including a requirement that the administration explain why all captives are being held and provide lawyers to any detainee seeking representation.

However, Sen. John W. Warner (R-Va), chairman of the Armed Services Committee, said he would “prefer to wait for the White House” to send Congress a proposal before offering his views. His committee meets Thursday on the issue.

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(BEGIN TEXT OF INFOBOX)

Common Article 3 of the Geneva Convention

From the Associated Press

This is the text of Common Article 3 of the Geneva Convention, which the Bush administration acknowledged Tuesday applied to detainees held by the United States in the war on terrorism:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed “hors de combat” by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.

(b) Taking of hostages.

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment.

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the parties to the conflict.

The parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present convention.

The application of the preceding provisions shall not affect the legal status of the parties to the conflict.