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 on Tuesday.
The new policy comes on the heels of a US Supreme Court ruling last month invalidating a system of military tribunals the Pentagon had created to try suspected terrorists, and just before Congress was due to take up the question of a replacement system in a Senate Judiciary Committee hearing on Tuesday.
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.
In 2002, US President George W. 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 referred to as Hamdan versus Rumsfeld, was that the administration had exceeded its authority by creating a system of tribunals without the approval of the US 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.
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 on Tuesday 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 Tuesday's Senate Judiciary Committee hearings.
Unlike four years ago, when the Bush administration formulated its plans for military commissions at Guantanamo 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.
Do unto others
Beginning shortly after the attacks of Sept. 11, 2001, the military lawyers warned that the administration's plan for military commissions put the US on the wrong side of the law and breached international standards. Most important, they warned, the plan could endanger members of the US military who might someday be captured by an enemy and treated the way detainees at Guantanamo have been.
Since 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," said John Hutson, a retired rear admiral who was the top uniformed lawyer in the Navy until 2000. "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.'"
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