In a major climbdown, the Bush administration formally conceded yesterday that detainees at Guantanamo Bay and other US military prisons around the world are entitled to protection under the Geneva Conventions.
The new policy, contained in a Pentagon memo from the Deputy Defence Secretary Gordon England, follows last month’s 5-3 ruling by the Supreme Court declaring that the military tribunals set up to try detainees were in breach of the conventions. In doing so, the court rejected the White House claim to virtually unlimited executive power in a time of war, making clear the tribunals should have been authorised by Congress.
Ever since Guantanamo Bay opened in early 2002, the administration has contended that as “unlawful combatants”, inmates did not fall within the purlieu of the conventions – even though, it claims, the detainees have always been treated as if they did apply.
Tony Snow, the White House spokesman, repeated that line yesterday. Detainees, he said, had been treated humanely. Nonetheless, “we want to get it right,” he hold reporters. The memo “is not really a reversal of policy,” merely a response to a “complex” decision by the court.
Daniel Dell’Orto, principal deputy general counsel at the Defence Department, said he believes the current treatment of detainees – as well as the existing tribunal process – already complies with Article 3 of the Geneva Conventions.
“The memo that went out, it doesn’t indicate a shift in policy,” Mr Dell’Orto said. “It just announces the decision of the court.
“The military commission set-up does provide a right to counsel, a trained military defence counsel and the right to private counsel of the detainee’s choice. We see no reason to change that in legislation.”
In fact the ruling on 29 June was hailed by human rights groups as a huge victory. Almost certainly it will hasten the end of a prison whose existence has become an embarrassment, severely damaging to the image of the United States around the world. Britain is one of several countries that have called for it to be shut down – and even Mr Bush himself says he wants to close it. The problem, according to Mr Bush, is what do to with the 450 inmates still held at the facility, on US territory in south-eastCuba.
Within hours of the White House announcement, Congress began discussions on legislation to govern the treatment and trial of detainees. The Senate Judiciary Committee considered its own proposals, with Democratic Senator Patrick Leahy saying that the US had to do better than “kangaroo courts” to deal with suspected terrorists.
Steven Bradbury, acting assistant attorney general of the Justice Department’s Office of Legal Counsel, told the Senate hearing that the Bush administration would abide by the Supreme Court’s ruling that a provision of the Geneva Conventions applies.
But he acknowledged that the provision – which requires humane treatment of captured combatants and requires trials with judicial guarantees “recognised as indispensable by civilised people” – is ambiguous and would be hard to interpret.
“The application of common Article 3 will create a degree of uncertainty for those who fight to defend us from terrorist attack,” Mr Bradbury said.