Analysis: Hamdan and the fate of the Geneva pact
on Jul 11, 2006 at 10:58 pm
UPDATE Wednesday morning, July 12: News organizations reported that the White House late Tuesday had issued a statement noting that a presidential order on Feb. 7, 2002 had declared that “Common Article 3 did not apply to Al Qaeda and Taliban detainees.” The statement then added: “As a result of the Supreme Court decision, that portion of the order no longer applies.” That statement is not available on the White House’s website.
Beginning with a story early Tuesday morning in the British newspaper, The Financial Times, the Geneva Convention — a venerable treaty that figured prominently in the Supreme Court’s June 29 ruling in Hamdan v. Rumsfeld — had a wild one-day journey through political Washington. By the end of the day, it was not clear just where the Bush Administration stood on the legal — and political — status of the Convention’s “Common Article 3.” (The full text of that Article can be found here.)
In Hamdan, the Supreme Court found that America’s military law incorporates one part of Common Article 3 — the part that guarantees that captives being held in detention may be prosecuted only by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The Court majority invoked that declaration in finding that President Bush’s war crimes tribunals (“military commissions”) were illegal under military law and that principle borrowed from Geneva. (The Court dfecision, it should be noted, had nothing to do with better-known provisions of Article 3 — the bans on torture or humiliating treatment of prisoners.)
For the past five years, the Bush Administration had argued — and did so in the Hamdan case — that war-on-terrorism detainees being held at the military prison at Guantanamo Bay, Cuba, were not protected by any part of the Geneva Convention.
But, in the wake of the Court’s ruling contradicting a portion of that claim, the Pentagon acted. This maneuver occurred last Friday, but no one outside military circles knew or noticed that. Only with The Financial Times story Tuesday morning did the public learn that Deputy Defense Secretary Gordon England had notified the entire military establish that it was to make all policies and doctrrine “comply with the standards of Common Article 3” — without restriction as to which part they had to obey. “You will ensure that all DoD personnel adhere to these standards,” England wrote in the directive. (The document can be found here.)
News stories immediately concluded — perhaps prematurely — that the Administration had made a major shift in policy, and was now fully embracing all of Common Article 3, at Guantanamo and everywhere else detainees are being held. Before long, White House Press Secretary Tony Snow confirmed for reporters the existence of the England memo — and later in the day, the Pentagon published a story about it on its website.
During the morning, however, a Pentagon official and a Justice Department official testified before a Senate Judciairy Committee hearing into possible legislative responses to the Hamdan ruling. Under questioning, the two officials left no doubt that the Administration preferred legislation that would ratify the “military commissions” as they were set up by President Bush in 2001, without any change to satisfy the Supreme Court’s discussion of the Geneva protections.
Daniel Dell’Orto, principal deputy general counsel for the Defense Department, was asked abou the England directive and the report on it in The Financial Times. “It doesn’t indicate a shift in policy. It just announces the decision of the court and with specificity as to the decision as it related to the commission process.” The memo, he added, was sent out “in order to ensure that that word got out.”
On possible legislation, Dell’Orto was equally emphatic: “I would say that given the system that has been designed as structured, were this body to render its approval for that system as it’s currently configured, with all the rights that are embodied in that system, and allow us to go forward would be a very expeditious way to move these [war crimes] trials very quickly.”
Added Stephen Bradbury, acting assistant attorney general in the Office of Legal Counsel of the Justice Departrment: “We do think when the Congress looks at the current procedures that have been set up for the military commissions, that the Congress will agree that there are good, sound policy reasons and practical — reasons of practical necessity to have the provisions that are currently in there.”
Dell’Orto and Bradbury did assure the Committee that President Bush would not act on his own to find a way to respond to the Supreme Court. There is a firm commitment to work with Congress on that, they said.
