Internal critics seek a softer line
As the clock runs down on the Bush administration, moderates within the government are mounting what may be one last drive to roll back many of the harsh detention and interrogation policies pushed through by Vice President Dick Cheney.
The effort, led by officials at the State Department, represents the latest battle in a war between hard-liners and moderates that has raged though most of the Bush administration.
In the early years of George W. Bush’s presidency, Cheney and his allies won most of the internal contests over the Guantanamo Bay prison, the CIA’s interrogation program, domestic spying, military commissions and other contentious issues.
But internal critics -- including the State Department’s legal advisor, John B. Bellinger III -- fought against those efforts. Buoyed by congressional action and court rulings, the moderates in recent years have helped break down administration resistance to international agreements and standards. The latest push underscores how deeply unpopular the most hawkish White House stances have proved to be even within the administration itself.
President-elect Barack Obama is likely to favor the internal critics’ proposals. But the Bush administration moderates want to push the changes through before Obama takes over, in hope of undoing some of the damage they believe has been done.
Bellinger initiated the latest skirmish with a letter earlier in the year urging the administration to follow a broad and detailed set of international minimum standards for the treatment of detainees suspected of terrorism.
The move is controversial within the administration in part because of concerns that it could force changes in the CIA’s secretive interrogation program. But backers are intent on taking the step to improve relations with allies and allow the U.S. to help shape the debate over how terrorism suspects should be treated.
“We could blunt criticism that the United States takes an opportunistic view of customary law, relying on it as a sword . . . but rarely working to develop it as a source of humanitarian safeguards,” Bellinger said in the letter, written to then-Pentagon General Counsel William J. Haynes II, a Cheney ally, in January.
A copy of the letter, which has never been made public, was read to The Times. But neither Bellinger nor Cheney’s office would discuss it. A State Department spokesman said only that Bellinger continued to study the issue.
Months after Haynes resigned his post, administration officials now are debating whether to follow Bellinger’s recommendation on the standard, an addendum to the Geneva Convention officially known as Article 75 of Protocol 1.
Adopting the standard would show that the U.S. has “turned a page” in how it treats detainees, said Matthew C. Waxman, who worked with Bellinger at the State Department before becoming a Columbia University law professor.
“The U.S. used to set the gold standard,” Waxman said. “We should strive to get there again by drawing sensible lines and persuading others to use them. And you can’t do that if you do not acknowledge the lines exist.”
Bellinger, who is close to Secretary of State Condoleezza Rice, has clashed for years with administration hawks, first as the lawyer for the White House National Security Council and then as legal advisor at the State Department.
Beginning early in the Bush administration, Cheney’s office sought to translate its expansive view of presidential powers into the adoption of harsh interrogation practices, a secret detention system, ad hoc terrorism trials and increased domestic surveillance. The administration argued that terrorism detainees are unlawful combatants not covered by the Geneva Convention.
The policies met with widespread condemnation from American human rights groups and many international leaders. The initiatives also met resistance from high-ranking officials at the FBI, Justice Department, State Department and elsewhere. Even the Bush administration’s harshest outside critics believe the internal resistance ultimately had a positive effect.
“From the point of the view of critics of the administration, things have been quite bad,” said Tom Malinowski, the Washington advocacy director of Human Rights Watch. “The question is, would they have been worse if not for the efforts of more moderate voices within the administration? My gut feeling is they would have been worse.”
Article 75 includes provisions designed to ensure fair trials. It also bans corporal punishment, mental torture and violence to the “physical or mental well-being” of detainees. The protocol was never ratified by the Senate. But backers of Bellinger’s proposal believe that presidential recognition of the addendum’s standards would boost U.S. standing on the issue.
Following three Supreme Court rulings, several new federal laws and an overhaul of the Army Field Manual on Interrogation, many administration policies have been changed. The Pentagon’s practices -- including the military commissions at Guantanamo -- are in line with Article 75, officials said.
But the CIA program remains secretive. Bush earlier this year vetoed a bill that would have blocked the CIA from using harsh methods such as waterboarding.
Formal administration recognition of the international standard, as proposed by the State Department, could force changes.
“If the U.S. were to take the view this is international law, that would apply across the board,” said an administration official who, like others, discussed the ongoing debate on condition of anonymity. “Treatment standards within the CIA program would have to be consistent with it, or we would be breaching international law.”
At first, Bellinger’s letter to Haynes received little attention. In recent months, Sandra Hodgkinson, the deputy assistant secretary of Defense for detainee affairs, took the request to Deputy Defense Secretary Gordon R. England, the No. 2 civilian in the Pentagon.
Officials said that England was intrigued by the proposal, but that lawyers at the Justice Department had raised questions about the wisdom of formal recognition. By recognizing the standard as “customary law,” the U.S. would be bound to adhere to it, even without Senate ratification.
Hodgkinson declined to discuss “internal correspondence” or her role in advising top Pentagon officials. But she said the administration did not have a “unified position” on Article 75.
“That discussion is still ongoing within the government,” she said. “There hasn’t been agreement at this time about whether it constitutes customary international law.”
Some officials are concerned that recognition of Article 75 could allow other nations to challenge U.S. detention policies. The addendum contains terms -- like “mental well-being” and “corporal punishment” -- that have been interpreted internationally in ways the U.S. might not agree with, the administration official said.
“There is concern the terms are vague,” the official said.
Charles Stimson, Hodgkinson’s predecessor at the Pentagon, said that much of the substance of Article 75 had been incorporated into Defense Department policy. While at the Pentagon, Stimson added many of the provisions into Pentagon rules.
“I felt very strongly at the time that those were common-sense provisions from Article 75 that we needed to have in there,” Stimson said.
Hodgkinson agreed that the Defense Department’s detention operations are in compliance with Article 75, something the Pentagon has told allies who have raised the issue.
“Which prompts the question: If you do it, why don’t you say it is the law?” Hodgkinson said. “And that is what makes this an interesting discussion.”