In a major victory for the State Department and career military lawyers, the Pentagon Wednesday released a new Army field manual that requires all detainees held by the U.S. military, including suspected terrorists, to be treated according to the Geneva Conventions.
At the same time, President George W. Bush announced that 14 so-called "high-value detainees" those who have been held by the Central Intelligence Agency (CIA) in secret locations around the world where they been subject to interrogation techniques that human rights groups have denounced as "torture" are being transferred to the U.S. military detention facility at Guantanamo Bay, Cuba, for eventual trial.
Among them are Khalid Sheik Mohammed, who is believed to be the highest-ranking member of al-Qaeda captured by the U.S. and the mastermind behind the 9/11 terrorist attacks on New York and the Pentagon, as well as several other key senior al-Qaeda operatives, Bush said.
He insisted, however, that they and other accused terrorists should not be entitled to full due-process rights when they are brought to trial.
Under legislation proposed by the administration, hearsay testimony and evidence obtained as a result of coercive interrogations would be admissible in such tribunals. It would also bar defendants from reviewing evidence that could, in the government’s opinion, compromise Washington’s national security.
In his remarks, Bush also defended the use of what he called "tough" but "safe" interrogation techniques of the kind used by the CIA in its so-called "black sites," and called on Congress to explicitly approve their use by the CIA in the future.
"[A]s more high-ranking terrorists are captured, the need to obtain intelligence from them will remain critical and having a CIA program for questioning terrorists will continue to be crucial to getting life-saving information," he said.
And he called on Congress to amend the U.S. War Crimes Act, which criminalizes violations of the Geneva Conventions, to ensure that no U.S. personnel "involved in capturing and questioning terrorists could now be at risk of prosecution" under its provisions.
The Pentagon’s new manual and Bush’s speech, the third in a series of major addresses designed to rally support for his administration’s performance in the "global war on terror" in the run-up to the fifth anniversary of the 9/11 attacks, received a mixed reaction from human rights groups.
"By announcing adherence to Common Article 3 of the Geneva Conventions for all detainees, the Pentagon has reaffirmed important protections found in international law," said Larry Cox, executive director of the U.S. section of Amnesty International.
At the same time, Cox complained that the proposed legislation on military tribunals would deny "fundamental fair-trial protections" to defendants. He also called on Bush to "rescind any directive that gives the CIA ‘extraordinary powers’ to continue to detain people secretly outside the law."
"The president sent a mixed message," said Elisa Massimino, Washington director of Human Rights First, a national lawyers’ group "On the one hand, he announced a new army field manual which contains interrogation techniques which, with a few exceptions, comply with U.S. law and the Geneva conventions."
"On the other hand, while declaring a commitment to a law-based approach, the president defended the system of secret CIA detentions and an ‘alternative set of [interrogation] procedures’ that invite cruel, inhuman, and degrading treatment of suspects treatment that amounts to a clear violation of U.S. and international law," she added.
Bush’s remarks and the release of the new army manual came two months after the U.S. Supreme Court rejected the administration’s 2002 directive, which was prepared by political appointees in the Justice Department and Pentagon over the objections of senior career military lawyers and the State Department, that suspected terrorists or "unlawful enemy combatants" were not entitled to the protections provided under Common Article 3 of the Geneva Conventions.
Article 3 provides that all detainees are legally entitled to humane treatment "in all circumstances" and may not be subject to "cruel treatment and torture" or "outrages upon personal dignity, in particular, humiliating and degrading treatment."
Two weeks after the court’s decision, Deputy Defense Secretary Gordon England issued a memorandum that called for "all DoD [Department of Defense] personnel [to] adhere to [Article 3] standards."
In fact, the administration has always insisted that all detainees have been treated "humanely" despite a flood of reports by human rights groups, the Federal Bureau of Investigation, former detainees, and detainee attorneys about practices ranging from sexual humiliation and exposure to extreme temperatures to physical assaults and "water-boarding" a technique used by the CIA, in particular, in which the subject is made to believe that he is drowning.
Because of the way the administration had defined "humane" treatment to include such practices, England’s memo, while broadly welcomed by the human rights community as an important step to comply with the Supreme Court’s judgment, also provoked skepticism from some analysts that it would make any real difference.
That skepticism was fueled as well by statements from senior administration lawyers who insisted in testimony before Congress on the same day of the memo’s release that it was not meant to signal a change in policy.
Indeed, the fact that Bush explicitly repeated his administration’s insistence that the U.S. "does not torture" like his demand that Congress amend the War Crimes Act to exempt U.S. personnel is likely to provoke continued skepticism about the administration’s intent, although the manual’s explicit bans on specific techniques, at least by the military, offered some reassurance.
Indeed, those bans which were strongly opposed by political appointees at the Pentagon, Vice President Dick Cheney’s office, and the Justice Department marked a major victory for the State Department and career military officers and lawyers. The conflict had delayed publication of the new manual by one year.
The same court decision that upheld Article 3 also found that the military tribunals established by the Pentagon to try suspected terrorists held at Guantanamo violated the Constitution because they were not approved by Congress.
The administration’s response reiterated by Bush today has been to urge Congress to pass legislation that would more or less rubber-stamp the Pentagon’s original plans.
Several Republican senators on the Armed Services Committee notably its chairman, John Warner; John McCain, and Lindsay Graham have argued, however, that those plans, particularly the rules of evidence, would violate defendants’ due-process rights and thus should be amended to conform more with procedures used in U.S. courts-martial. Their position has been backed by most Democrats and by top career military attorneys, past and present.
"The bottom line to today’s announcements," said Scott Horton, an international law professor at Columbia University in New York, "is that the administration is giving up on some of the most controversial targets in its detainee treatment program, such as the use of highly coercive interrogation tactics by the military, but wants to keep its military commissions despite the fact that the Supreme Court essentially called them ‘kangaroo courts.’"
Horton also noted that the administration’s call for amending the War Crimes Act in ways that would effectively exempt U.S. personnel engaged in the "war on terror" appeared primarily designed to protect senior policymakers, particularly those political appointees who were responsible for authorizing abusive treatment and interrogation techniques, from possible prosecution.
(Inter Press Service)