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US reverses policy on military detainees
By Demetri Sevastopulo in Washington
Published: July 11 2006 05:39 | Last updated: July 11 2006 05:39
The Pentagon has decided in a major policy shift that all detainees held in US military custody around the world are entitled to protections under the Geneva Conventions, according to two people familiar with the move.
The FT has learned that Gordon England, deputy defence secretary, sent a memo to senior defence officials and military officers last Friday, telling them that Common Article 3 of the Geneva Conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.
This reverses the policy outlined by President George W. Bush in 2002 when he decided members of al-Qaeda and the Taliban did not qualify for Geneva protections because the war on terrorism had ushered in a “new paradigm…[that] requires new thinking in the law of war”.
The policy U-turn comes on the heels of the Supreme Court ruling last month that the military commissions Mr Bush created to try prisoners at Guantanamo Bay contravened both US law and the Geneva Conventions.
The White House had argued that Mr Bush, as commander-in-chief, had the authority to convene the military commissions. Critics who rejected this interpretation said the commissions were unjust because, for instance, defendants were unable to see all the evidence levelled against them.
In a stunning rebuke of Mr Bush, the Supreme Court ruled 5-3 that his administration had overshot its authority in constituting the controversial commissions, concluding that they did not offer defendants sufficient legal rights.
The court also suggested that the administration work with Congress to reach a solution that would address the problems, including the introduction of evidence.
Arlen Specter, the Republican chairman of the Senate judiciary committee, is scheduled on Tuesday to kick off a series of Congressional hearings that will examine the Supreme Court ruling in the case of Salim Ahmed Hamdan - the former driver of Osama bin Laden who became the first detainee brought before a military commission – and its implications for dealing with the 450 detainees remaining at the Guantanamo.
In the wake of the Supreme Court decision, legal experts had disagreed about whether the ruling meant that Geneva protections should be given to only those detainees brought before the military commissions, or to all detainees held at Guantanamo Bay and other US military detention facilities around the world.
That question now appears moot in light of the Pentagon move. Congress could conceivably still rewrite US law to eliminate the Geneva protections, but such a move would generate huge international criticism.
“This memo was a prudent and responsible thing to do,” said a former Bush administration official with knowledge of the memo.
“Humane treatment is at the centre of the Pentagon’s directives and procedures, but the court’s ruling expanded previous understanding of the applicability of Common Article 3 so this memo was an important next step. It is now up to Congress to provide statutory clarity if possible.”
The move, which comes as Mr Bush gets ready to leave Washington for the G8 summit in Russia, is likely to be well received by his allies, including the UK, who have been very critical of Guantanamo Bay.
Alberto Mora, the former Navy judge-advocate general who was one of the most vocal internal critics of the Pentagon’s detainee policies, told the FT the move was a “marvellous development”.
“We have gained ground with the Detainee Treatment Act, with the Supreme Court [Hamdan] decision and with other intervening steps,” said Mr Mora. “But there is no question that this will be very well regarded both by the general public overseas and with our traditional allies and will strengthen to wage successful the war on terror.”
The Pentagon has maintained that it treats detainees humanely, and investigates abuses when they come to light. In addition to international and domestic criticism following the Abu Ghraib prison scandal, however, the US military has come under renewed scrutiny recently following allegations that marines murdered 24 Iraqi civilians in Haditha last year and then covered up the incident.
The Pentagon is also investigating a separate allegation that US soldiers raped a young Iraqi woman, before murdering her and three family members, including a young girl.
The policy reversal reflects the increased difficulty the administration is having defending its view that Mr Bush should have unfettered ability to prosecute the war on terror.
In December, the White House lost another major policy battle after John McCain, the Arizona senator, essentially forced the administration to accept his Detainee Treatment Act which prohibited torture. Vice President Dick Cheney and David Addington, one of his top policy advisers, had opposed Mr McCain’s legislation.
While Mr Bush declined to apply the Geneva conventions to Taliban and al-Qaeda captives, he ordered in 2002 that “detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”. But his critics argued that the wording of his order provided large loopholes that could be exploited to abuse prisoners.
While the Pentagon order applies to all detainees held by the US military, it does not apply to prisoners held outside the military detention system, such as Khaled Sheikh Mohammed, the alleged mastermind of the September 11 attacks who is being held in a secret Central Intelligence Agency prison. But the Pentagon move could increase pressure on the administration to re-examine CIA detention policies and practices.
The Pentagon memo, which requires senior military officers to ensure that their detention and interrogation policies are compliant with Common Article 3, was ordered by William Haynes, the Pentagon general counsel, who has attracted criticism for his role in developing controversial interrogation techniques.
Mr Haynes, who has been nominated to become a federal judge, faces a critical nomination hearing on Capitol Hill on Tuesday. Until now, he has consistently sided with Mr Cheney in internal disputes in arguing prisoners captured in the war on terror should not receive Geneva protections.
Copyright The Financial Times Limited 2006