Analysis: Bush switches on Guantanamo policy

Decision gives detainees protection under Geneva Conventions

(07-12) 04:00 PDT Washington — The Bush administration relented Tuesday nearly five years after it began holding foreign prisoners at Guantanamo Bay, pledging that detainees will be accorded basic human rights protections under the Geneva Conventions.

The decision was announced with little fanfare. The news was contained in an internal Department of Defense memo, leaked to a London-based newspaper and downplayed by administration officials as no “real change” in policy.

Yet the development marked a momentous shift in Bush’s war on terror, which has long drawn a distinction between fighting terrorists and more traditional foes. It came only after the Supreme Court rejected the Bush approach and Congress began the process of writing new laws.

And it marked a rare acknowledgement from the Bush Defense Department of the limits to presidential power in the age of terror.

Since President Bush declared in the days after the Sept. 11 attacks that the nation was facing “a different enemy than we have ever faced,” he has asserted sweeping executive powers in a campaign to “eradicate the evil of terrorism.”

The attacks on Afghanistan and Iraq were accompanied by the detention of thousands of terrorist suspects, warrantless surveillance of phone conversations, collection of domestic phone logs and inspection of bank records.

The assertion of executive power was most evident at the U.S. military compound at Guantanamo Bay, Cuba, where hundreds of terrorist suspects captured in Afghanistan, Iraq and elsewhere were kept out of sight and, in the opinion of Department of Justice lawyers, outside the full jurisdiction of the American legal system.

Officials asserted that prisoners would be treated humanely and “consistent with the principles of the Geneva Conventions,” the international treaties that provide basic rights to prisoners of war, including protections against torture and humiliation.

Yet they insisted that members of al Qaeda and other terrorist suspects, who did not wear the uniform of a sworn foe or pledge allegiance to a nation that had signed the treaty, were not entitled to its full legal protections, which include the right to a trial “by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

The Supreme Court ruled two weeks ago that the military tribunals created by the administration require the authorization of Congress and that the Geneva Conventions apply to all the detainees.

The prison has become a focal point of criticism — at home and abroad — of the administration’s strong-arm approach to terrorist suspects, and even Bush has acknowledged that shutting it down would be a good idea after its current 450 occupants are gone.

Allegations of torture, inhumane conditions and religious insensitivity became accepted facts among critics but were difficult to verify, in part because access was controlled by the U.S. captors. The recent suicide of three detainees heightened concern around the world that conditions at the camp do not meet international standards.

“For five years, the administration has violated fundamental American values, damaged our international reputation, and delayed and weakened prosecution of the war on terror, not because of any coherent strategic view they had, but because of its stubborn unilateralism and dangerous theory of unfettered executive power, augmented by self-serving legal reasoning,” Sen. Patrick Leahy, D-Vt., said at the outset of a Senate Judiciary Committee hearing on the matter Tuesday.

George Washington University Law Professor Jonathan Turley said Bush’s refusal to previously guarantee the protection of the Geneva Conventions at Guantanamo had fed a global attitude that the “U.S. is simply a rogue nation that has resisted the rule of law.”

The Defense Department memo seemed designed, in part, to quell congressional appetite to reign in the administration. The memo by Deputy Defense Secretary Gordon England to all branches of the armed forces was written Friday and reported in Tuesday’s editions of the Financial Times. It became public Tuesday morning when two administration officials testified before the Senate Judiciary Committee and asked for legislation that would permit them to proceed with military tribunals, rather than a system that would place more burdens on the prosecution.

“The world we live in is a dangerous place,” warned acting Assistant Attorney General Steve Bradbury, making the case that many of the detainees at Guantanamo pose a major threat to the United States.

“It’s not Happy Valley. And the president has done what he thought is best to protect the country from another attack, consistent with the Constitution,” Bradbury said.

Bradbury, during questions from senators, said, “We should not use any evidence obtained through torture” to prosecute the detainees, but he was less willing to give up the right to use evidence obtained before prisoners are offered attorneys or informed of their rights.

Several Republicans on the committee indicated an interest in curbing the administration’s hard-line stance. Sen. Lindsey Graham, R-S.C., said it will be a “long hot summer” if the administration does not work with Congress on some mutually agreed-upon procedures.

Yet several experts said the administration’s gesture on the Geneva Conventions will help calm congressional concern.

“It’s a savvy political move by the president,” said Pepperdine Law Professor Douglas Kmiec, who noted that if Bush has been honest about already providing such protections in the past, “nothing should change.”

Even Turley, the professor who has been far more critical of the administration, said it will “take off the table one of the most glaring and longest-standing problems of the administration. Most citizens recognize the Geneva Conventions as one of the foundational treaties in history. Most Americans were disturbed by accounts that the U.S. would not abide by the Geneva Conventions.”

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San Francisco Chronicle, USA
July 12, 2006
Marc Sandalow, Washington Bureau Chief

Religion News Blog posted this on Wednesday July 12, 2006.
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