³The administration has fought tooth and nail for four
years to say Common Article 3 does not apply to Al
Qaeda,² Mr. Lederman said. ³Having lost that fight, I¹m
afraid they¹re now saying, ŒNever mind, we¹ve been in
compliance with Article 3 all along.¹ ²
We need to keep in mind here that the US has used torture routinely for decades,
long before 911. The School of the Americas, for example, taught torture to
South American dictators during the era of the Disappeared. The Bush changes
were not about introducing torture, but about making it 'legal'.
rkm
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Original source URL:
http://www.nytimes.com/2006/07/12/washington/12detain.html
July 12, 2006
NEWS ANALYSIS
Terror and Presidential Power: Bush Takes a Step Back
By SCOTT SHANE
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 administration¹s
aggressive legal stance.
The administration¹s 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,
³applies as a matter of law to the conflict with Al Qaeda.²
Administration officials suggested that the memo only restated what was already
policy ‹ that detainees must be treated ³humanely.² But what was undeniable was
that the president¹s 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formally withdrawn part of the 2002 order and accepted that Article 3 now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 ³humiliating and degrading
treatment² of prisoners and requires trials ³affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.²
³This is an important course correction, and there are political ramifications
to it,² said Scott L. Silliman, an expert on the law of war at Duke University.
Top defense officials ³never really clarified when Geneva applied and when it
didn¹t,² 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.
³They were going to reach as far as possible to prosecute this war, and if they
were forced to scale back, they¹d scale back,² Mr. Kohn said. ³Almost from the
beginning, the administration has had to back away and fuzz up the issues.²
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.
³As time passed, and no more buildings were blowing up, it was no longer an
emergency, and the rules had to be renegotiated,² 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 ³our recent extensive discussions² had shown that
deciding how Geneva rules would apply to Qaeda prisoners ³involves complex legal
questions.² It said that the conventions¹ protections did not apply to terror
suspects, but also that ³our values as a nation² nonetheless ³call for us to
treat detainees humanely, including those who are not legally entitled to such
treatment.²
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 ³organ
failure² was banned as torture.
In late 2005, the administration was forced to accept legislation proposed by
Senator John McCain, Republican of Arizona, to ban ³cruel, inhuman or degrading
treatment² of prisoners held by the United States anywhere in the world.
In the meantime, the Supreme Court was knocking down some of the
administration¹s 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 administration¹s 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. England¹s memo. ³It is my
understanding,² he wrote, that all current Defense Department rules were already
in compliance with Article 3.
But Mr. England¹s wording suggested that after all the policy adjustment since
2002, he was not certain everyone was operating from the same playbook: ³I
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 3.²
Mr. England¹s 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.
³It¹s clear when you look at Abu Ghraib and everything else that there was a
tremendous amount of confusion,² Mr. Silliman said.
Even as legal experts parsed Mr. England¹s memo, confusion lingered. The
American Civil Liberties Union welcomed the memo as ³a first big step² toward
ending ³four years of lawlessness² 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.
³The administration has fought tooth and nail for four years to say Common
Article 3 does not apply to Al Qaeda,² Mr. Lederman said. ³Having lost that
fight, I¹m afraid they¹re now saying, ŒNever mind, we¹ve been in compliance with
Article 3 all along.¹ ²
Copyright 2006 The New York Times Company
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