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| Bush Takes a Step Back |
Erewhon |
07/12/06 |
Terror and Power: Bush Takes a Step Back
By SCOTT SHANE
Published: July 12, 2006
WASHINGTON, July 11 — From the outset, President Bush declared that the battle against Al Qaeda would be a war like no other, fought by new rules against new enemies not entitled to the old protections afforded to either prisoners of war or criminal defendants.
But the White House acknowledgment on Tuesday that a key clause of the Geneva Conventions applies to Qaeda detainees, as a recent Supreme Court ruling affirmed, is only the latest step in the gradual erosion of the administration’s aggressive legal stance.
The administration’s initial position emerged in 2002 only after a fierce internal legal debate, and it has been revised in the face of international opinion, Congressional curbs and Supreme Court rulings. Two central ideas of the war on terror — that the president could fight it exclusively on the basis of his constitutional powers and that terrorist suspects had few, if any, rights — have been modified repeatedly.
Scholars debated the meaning of a Defense Department memo made public on Tuesday that declared that the clause in the Geneva Conventions, Common Article 3, “applies as a matter of law to the conflict with Al Qaeda.”
Administration officials suggested that the memo only restated what was already policy — that detainees must be treated “humanely.” But what was undeniable was that the president’s executive order of Feb. 7, 2002, declared that Article 3 did not apply to Al Qaeda or to Taliban detainees, and that the newly released memo, written by Deputy Defense Secretary Gordon R. England, said it did.
After the Pentagon released the memo, the White House confirmed that it had formally withdrawn part of the 2002 order and accepted that Article 3 now applied to Qaeda detainees. That article prohibits “humiliating and degrading treatment” of prisoners and requires trials “affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
“This is an important course correction, and there are political ramifications to it,” said Scott L. Silliman, an expert on the law of war at Duke University. Top defense officials “never really clarified when Geneva applied and when it didn’t,” he said.
Richard H. Kohn, a military historian at the University of North Carolina, said the administration might have anticipated that it would have to adjust its policies, formed under immense pressure after the Sept. 11, 2001, terrorist attacks.
“They were going to reach as far as possible to prosecute this war, and if they were forced to scale back, they’d scale back,” Mr. Kohn said. “Almost from the beginning, the administration has had to back away and fuzz up the issues.”
If there has been a retreat, it may partly reflect a change in the perceived threat from Al Qaeda since the disorienting days after Sept. 11. As months, then years, passed without a new attack in the United States, the toughest measures seemed steadily less justifiable.
“As time passed, and no more buildings were blowing up, it was no longer an emergency, and the rules had to be renegotiated,” said Dennis E. Showalter, a professor of history at Colorado College.
In retrospect, all the contradictions that have emerged in the last four years were present in embryo in the 2002 presidential order.
The order began by noting that “our recent extensive discussions” had shown that deciding how Geneva rules would apply to Qaeda prisoners “involves complex legal questions.” It said that the conventions’ protections did not apply to terror suspects, but also that “our values as a nation” nonetheless “call for us to treat detainees humanely, including those who are not legally entitled to such treatment.”
In 2003, the administration decided that Article 3 would be applied to all prisoners captured in Iraq — even non-Iraqi members of Al Qaeda. But the May 2004 revelations of abuse of prisoners at Abu Ghraib showed that the policy had not always been followed, and in response, the Defense Department repeatedly whittled down the list of approved interrogation techniques.
In 2004, the Justice Department reversed course as well, formally withdrawing a 2002 opinion asserting that nothing short of treatment resulting in “organ failure” was banned as torture.
In late 2005, the administration was forced to accept legislation proposed by Senator John McCain, Republican of Arizona, to ban “cruel, inhuman or degrading treatment” of prisoners held by the United States anywhere in the world.
In the meantime, the Supreme Court was knocking down some of the administration’s key assertions of presidential power in the battle against terror.
In Rasul v. Bush in 2004, the court ruled that American courts had the authority to decide whether foreign terror suspects held at Guantánamo Bay, Cuba, had been rightfully detained. And on June 29, in Hamdan v. Rumsfeld, the court rejected the administration’s rules for military commissions set up to try Guantánamo detainees, saying it had failed to seek Congressional approval and had fallen short of the standards set by law and the Geneva Conventions.
It was the Hamdan ruling that prompted Mr. England’s memo. “It is my understanding,” he wrote, that all current Defense Department rules were already in compliance with Article 3.
But Mr. England’s wording suggested that after all the policy adjustment since 2002, he was not certain everyone was operating from the same playbook: “I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standard of Common Article 3.”
Mr. England’s uncertainty was not surprising, Mr. Silliman said. Mixed messages over exactly which rules applied where, and which Geneva protections were to be honored and which ignored, were at the root of prisoner abuse scandals from Guantánamo to Iraq to Afghanistan, he said.
“It’s clear when you look at Abu Ghraib and everything else that there was a tremendous amount of confusion,” Mr. Silliman said.
Even as legal experts parsed Mr. England’s memo, confusion lingered. The American Civil Liberties Union welcomed the memo as “a first big step” toward ending “four years of lawlessness” on detainee issues. But it also noted that in testimony Tuesday, other administration officials suggested that Congress simply adopt as law the proposed military commissions in exactly the form that civil libertarians say falls far short of Article 3.
That skepticism was shared by Martin S. Lederman, a former Justice Department official now at the Georgetown University law school.
“The administration has fought tooth and nail for four years to say Common Article 3 does not apply to Al Qaeda,” Mr. Lederman said. “Having lost that fight, I’m afraid they’re now saying, ‘Never mind, we’ve been in compliance with Article 3 all along.’ ”
===
Well, well, well!
Well?
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Clarification/Follow-up by tomder55 on 07/12/06 7:45 pm:
is using omni- in front of imperator necessary ? just calling him imperator is as complete an insult as you could make .
Clarification/Follow-up by ETWolverine on 07/12/06 8:16 pm:
Ronnie,
Have you seen a single article o statement from Amnesty International or Human Rights Watch regarding the terrorists butcheing POWs? Please show me any such article or statement.
As for the rules of war, just wait. You'll see regular armies committing all sorts of war crimes, because they know they are going to be protected anyway if captured. You'll see more terrorist acts committed because the terrorists know that they will be protected anyway if captured. What is to prevent such acts from being committed now that anyone, whether they follow the rules of war or not, is protected by the GC. If the priotections apply to anyone, regardless of their actions, then why should they show any sort of restraint?
Elliot Clarification/Follow-up by Erewhon on 07/12/06 11:18 pm:
Elliot,
Regular armies are NOT protected from war crimes. Nor should they be.
http://www.publicinternationallaw.org/warcrimeswatch/index.html
Clarification/Follow-up by tomder55 on 07/13/06 10:03 am:
I think you miss the point of Geneva. A treaty is an agreement/contract between signatories .A state that is not a signatory is not bound by it ;nor is a signatory bound in warfare against a non-signatory state . The agreement between signatory states becomes null and void if one of the states breaks the terms of the treaty . A terrorist org. is neither a state nor a signatory and is not bound by the terms or entitled to the terms .
SCOTUS managed to twist it to mean that the terrorist org. al-Qaeda is not bound to the terms but entitled to the benefits . Clarification/Follow-up by Erewhon on 07/13/06 10:34 am:
Isn't that exactly what POTUS did? He wanted immunity from its terms while anticipating, expecting, hoping, that his own troops would have its benefits extended to them?
We have learned by sad experience that terrorists do not play by the rules, but that is no reason to degrade ourselves to ape their behaviour. Especially if we wish to be seen as holding the moral high ground.
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