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At least they won't pull an Andrew Jackson and say "Now you enforce it". Then again, it may just be talk. Regardless:
July 11, 2006
In Big Shift, U.S. to Follow Geneva Treaty for Detainees
By NEIL A. LEWIS and JOHN O’NEIL
WASHINGTON, July 11 — In a sweeping change of policy, the Pentagon has decided that it will treat all detainees in compliance with the minimum standards spelled out in the Geneva conventions, a senior defense official said today.
The new policy comes on the heels of a Supreme Court ruling last month invalidating a system of military tribunals the Pentagon had created to try suspected terrorists, and just before Congress takes up the question of a replacement system in a Senate Judiciary Committee hearing today.
As part of its decision, the court found that a key provision of the Geneva conventions, known as Common Article 3, did apply to terror suspects, contradicting the position taken by the Bush administration.
The Pentagon memo allowing detainees the protections of Article 3 was first reported today by The Financial Times.
In 2002, President Bush declared that members of Al Qaeda and other terror suspects seized during the invasion of Afghanistan were “illegal combatants,’’ and so were not entitled to the protections of the Geneva conventions, which among other things set forth rules for the treatment of prisoners of war.
The main thrust of the recent Supreme Court ruling, in a case known as Hamdan v. Rumsfeld, was that the administration had exceeded its authority by creating a system of tribunals without the approval of Congress. But the court also declared that the suspects fell under Article 3, which applies to all “armed combatants,’’ and that detainees were able to assert their rights under Article 3 in federal court.
President Bush last week said that he “would comply’’ with the court’s ruling, but he has given no details of how he would do so.
Since the court’s ruling, Republicans have appeared divided over whether to simply seek Congressional approval for a slightly modified tribunal system or to adopt a version of traditional courts-martial instead. The Pentagon memo reported today may simply reflect a decision that any new system that did not afford detainees the protections of Article 3 would not survive challenge in court.
Article 3 guarantees detainees a minimum level of rights expected in a civilized country. But what that includes and what procedures should govern their trials is expected to be the subject of lively Congressional debates all summer, beginning with today’s Senate Judiciary Committee hearings.
Unlike four years ago, when the Bush administration formulated its plans for military commissions at Guantánamo Bay, Cuba, the debate now seems certain to include the views of the military’s most senior uniformed lawyers, whose objections were brushed aside earlier.
John D. Hutson, a retired rear admiral who was the top uniformed lawyer in the Navy until 2000, is one of a number of retired senior military lawyers who have filed briefs challenging the administration’s legal approach.
“We’re at a crossroads now,” Admiral Hutson said. “We can finally get on the right side of the law and have a system that will pass Supreme Court and international scrutiny.”
He and some other current and former senior military lawyers are scheduled to testify this week before one of the three Congressional committees looking into the matter. He said he plans to urge Congress to avoid trying to get around last month’s Supreme Court ruling.
Beginning shortly after the attacks of Sept. 11, 2001, the military lawyers warned that the administration’s plan for military commissions put the United States on the wrong side of the law and breached international standards. Most important, they warned, the plan could endanger members of the American military who might someday be captured by an enemy and treated the way detainees at Guantánamo have been.
But the lawyers’ sense of vindication at the Supreme Court’s 5-to-3 decision is tempered by growing anxiety over what may happen next. Several military lawyers, most of them retired, have said they are troubled by the possibility that Congress may restore the kind of system they have long argued against.
Donald J. Guter, Admiral Hutson’s successor, who has also since retired, said it would be a mistake for Congress to try to undo the Supreme Court ruling. Admiral Guter was one of several senior military judge advocates general, known as JAG’s, whose advice against forming the military commissions went pointedly unheeded.
“This was the concern all along of the JAG’s,” Admiral Guter said. “It’s a matter of defending what we always thought was the rule of law and proper behavior for civilized nations.”
One of the more intriguing hearings will be held Thursday, when the current top military lawyers in the Navy, Army, Air Force and Marines are due to testify before the Senate Armed Services Committee. The main question will be whether they express the same concerns as those now out of uniform.
Longstanding custom allows serving officers to give their own views candidly at Congressional hearings if specifically asked, and some in the Senate expect the current uniformed lawyers to generally urge that Congress not stray far from the Uniform Code of Military Justice, the system that details court-martial proceedings.
Senator Bill Frist, the Republican leader, told reporters on Monday that he did not expect the Senate to take up any legislation on the issue before the August recess of Congress.
TSince the Hamdan ruling was announced, some legislators had said they would consider rewriting the law specifically to make Article 3 of the Geneva Conventions, no longer applicable.
“We should be embracing Common Article 3 and shouting it from the rooftops,” Admiral Hutson said. “They can’t try to write us out of this, because that means every two-bit dictator could do the same.”
He said it was “unbecoming for America to have people say, ‘We’re going to try to work our way around this because we find it to be inconvenient.’ ”
“If you don’t apply it when it’s inconvenient,” he said, “it’s not a rule of law.”
Brig. Gen. David M. Brahms, a retired officer who was the chief uniformed lawyer for the Marine Corps, said he expected experienced military lawyers to try to persuade Congress that the law should not be changed to sidestep the court’s ruling.
“Our central theme in all this has always been our great concern about reciprocity,” General Brahms said in an interview. “We don’t want someone saying they’ve got our folks as captives and we’re going to do to them exactly what you’ve done because we no longer hold any moral high ground.”
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, which will hold its hearing today, said: “The first people we should listen to are the military officers who have decades of experience with these issues. Their insights can help build a system that protects our citizens without sacrificing America’s ideals.”
Underlying the debate over how and whether to change the law on military commissions is a battle over the president’s authority to unilaterally prescribe procedures in a time of war. The Supreme Court’s decision was a rebuke to the administration’s assertions that President Bush’s powers should remain mostly unrestricted in a time of war.
Most military lawyers say they believe that few, if any, of the Guantánamo detainees could be convicted in a regular court-martial.
Lt. Col. Sharon A. Shaffer of the Air Force, the lawyer for a Sudanese detainee who has been charged before a military commission, said she was confident that she would win an acquittal for her client, who is suspected of being an accountant for Al Qaeda, under court-martial rules.
“For me it was awesome to see the court’s views on key issues I’ve been arguing for years,” Colonel Shaffer said.
The majority opinion, written by Justice John Paul Stevens, said the two biggest problems with the commissions were that the military authorities could bar defendants from being present at their own trial, citing security concerns, and that the procedures contained looser rules of evidence, even allowing hearsay and evidence obtained by torture, if the judge thought it would be helpful.
Colonel Shaffer said she was restrained under the rules from calling as a witness a Qaeda informant whose information had been used to charge her client. “I’m going to want for my client to face his accuser,” she said, “and for me to have an opportunity to impeach his testimony.”
In Big Shift, U.S. to Follow Geneva Treaty for Detainees
By NEIL A. LEWIS and JOHN O’NEIL
WASHINGTON, July 11 — In a sweeping change of policy, the Pentagon has decided that it will treat all detainees in compliance with the minimum standards spelled out in the Geneva conventions, a senior defense official said today.
The new policy comes on the heels of a Supreme Court ruling last month invalidating a system of military tribunals the Pentagon had created to try suspected terrorists, and just before Congress takes up the question of a replacement system in a Senate Judiciary Committee hearing today.
As part of its decision, the court found that a key provision of the Geneva conventions, known as Common Article 3, did apply to terror suspects, contradicting the position taken by the Bush administration.
The Pentagon memo allowing detainees the protections of Article 3 was first reported today by The Financial Times.
In 2002, President Bush declared that members of Al Qaeda and other terror suspects seized during the invasion of Afghanistan were “illegal combatants,’’ and so were not entitled to the protections of the Geneva conventions, which among other things set forth rules for the treatment of prisoners of war.
The main thrust of the recent Supreme Court ruling, in a case known as Hamdan v. Rumsfeld, was that the administration had exceeded its authority by creating a system of tribunals without the approval of Congress. But the court also declared that the suspects fell under Article 3, which applies to all “armed combatants,’’ and that detainees were able to assert their rights under Article 3 in federal court.
President Bush last week said that he “would comply’’ with the court’s ruling, but he has given no details of how he would do so.
Since the court’s ruling, Republicans have appeared divided over whether to simply seek Congressional approval for a slightly modified tribunal system or to adopt a version of traditional courts-martial instead. The Pentagon memo reported today may simply reflect a decision that any new system that did not afford detainees the protections of Article 3 would not survive challenge in court.
Article 3 guarantees detainees a minimum level of rights expected in a civilized country. But what that includes and what procedures should govern their trials is expected to be the subject of lively Congressional debates all summer, beginning with today’s Senate Judiciary Committee hearings.
Unlike four years ago, when the Bush administration formulated its plans for military commissions at Guantánamo Bay, Cuba, the debate now seems certain to include the views of the military’s most senior uniformed lawyers, whose objections were brushed aside earlier.
John D. Hutson, a retired rear admiral who was the top uniformed lawyer in the Navy until 2000, is one of a number of retired senior military lawyers who have filed briefs challenging the administration’s legal approach.
“We’re at a crossroads now,” Admiral Hutson said. “We can finally get on the right side of the law and have a system that will pass Supreme Court and international scrutiny.”
He and some other current and former senior military lawyers are scheduled to testify this week before one of the three Congressional committees looking into the matter. He said he plans to urge Congress to avoid trying to get around last month’s Supreme Court ruling.
Beginning shortly after the attacks of Sept. 11, 2001, the military lawyers warned that the administration’s plan for military commissions put the United States on the wrong side of the law and breached international standards. Most important, they warned, the plan could endanger members of the American military who might someday be captured by an enemy and treated the way detainees at Guantánamo have been.
But the lawyers’ sense of vindication at the Supreme Court’s 5-to-3 decision is tempered by growing anxiety over what may happen next. Several military lawyers, most of them retired, have said they are troubled by the possibility that Congress may restore the kind of system they have long argued against.
Donald J. Guter, Admiral Hutson’s successor, who has also since retired, said it would be a mistake for Congress to try to undo the Supreme Court ruling. Admiral Guter was one of several senior military judge advocates general, known as JAG’s, whose advice against forming the military commissions went pointedly unheeded.
“This was the concern all along of the JAG’s,” Admiral Guter said. “It’s a matter of defending what we always thought was the rule of law and proper behavior for civilized nations.”
One of the more intriguing hearings will be held Thursday, when the current top military lawyers in the Navy, Army, Air Force and Marines are due to testify before the Senate Armed Services Committee. The main question will be whether they express the same concerns as those now out of uniform.
Longstanding custom allows serving officers to give their own views candidly at Congressional hearings if specifically asked, and some in the Senate expect the current uniformed lawyers to generally urge that Congress not stray far from the Uniform Code of Military Justice, the system that details court-martial proceedings.
Senator Bill Frist, the Republican leader, told reporters on Monday that he did not expect the Senate to take up any legislation on the issue before the August recess of Congress.
TSince the Hamdan ruling was announced, some legislators had said they would consider rewriting the law specifically to make Article 3 of the Geneva Conventions, no longer applicable.
“We should be embracing Common Article 3 and shouting it from the rooftops,” Admiral Hutson said. “They can’t try to write us out of this, because that means every two-bit dictator could do the same.”
He said it was “unbecoming for America to have people say, ‘We’re going to try to work our way around this because we find it to be inconvenient.’ ”
“If you don’t apply it when it’s inconvenient,” he said, “it’s not a rule of law.”
Brig. Gen. David M. Brahms, a retired officer who was the chief uniformed lawyer for the Marine Corps, said he expected experienced military lawyers to try to persuade Congress that the law should not be changed to sidestep the court’s ruling.
“Our central theme in all this has always been our great concern about reciprocity,” General Brahms said in an interview. “We don’t want someone saying they’ve got our folks as captives and we’re going to do to them exactly what you’ve done because we no longer hold any moral high ground.”
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, which will hold its hearing today, said: “The first people we should listen to are the military officers who have decades of experience with these issues. Their insights can help build a system that protects our citizens without sacrificing America’s ideals.”
Underlying the debate over how and whether to change the law on military commissions is a battle over the president’s authority to unilaterally prescribe procedures in a time of war. The Supreme Court’s decision was a rebuke to the administration’s assertions that President Bush’s powers should remain mostly unrestricted in a time of war.
Most military lawyers say they believe that few, if any, of the Guantánamo detainees could be convicted in a regular court-martial.
Lt. Col. Sharon A. Shaffer of the Air Force, the lawyer for a Sudanese detainee who has been charged before a military commission, said she was confident that she would win an acquittal for her client, who is suspected of being an accountant for Al Qaeda, under court-martial rules.
“For me it was awesome to see the court’s views on key issues I’ve been arguing for years,” Colonel Shaffer said.
The majority opinion, written by Justice John Paul Stevens, said the two biggest problems with the commissions were that the military authorities could bar defendants from being present at their own trial, citing security concerns, and that the procedures contained looser rules of evidence, even allowing hearsay and evidence obtained by torture, if the judge thought it would be helpful.
Colonel Shaffer said she was restrained under the rules from calling as a witness a Qaeda informant whose information had been used to charge her client. “I’m going to want for my client to face his accuser,” she said, “and for me to have an opportunity to impeach his testimony.”
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