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Military Contorts Over Apparent Detainee Policy Shift

by Jessica Azulay

July 12, 2006 – The Pentagon yesterday announced that military officials were under new orders to ensure that detainee treatment policies comply with a key international law prohibiting torture and other abuses.

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The order came less than two weeks after the US Supreme Court contradicted Bush administration doctrine by ruling that a provision of the Geneva Conventions applies to detainees held at the military prison in Guantánamo Bay, Cuba.

In his July 7 memo issuing the order, however, Deputy Defense Secretary Gordon England wrote that the only policy change to come out of the Supreme Court ruling would be suspension of the military tribunals that the Bush administration had designed to try detainees for war crimes.

"It is my understanding that, aside from the military commission procedures, existing [Department of Defense] orders, policies, directives, executive orders and doctrine [already] comply with the standards of Common Article 3," England wrote, referring to the Geneva Conventions section cited by the high court. England also referenced an earlier order by President Bush that "the United States Armed Forces shall continue to treat detainees humanely."

Nevertheless, England’s memo ordered a review of current detainee policies to ascertain their compliance with Article 3 protections.

In addition to banning discriminatory treatment among battlefield prisoners based on race, religion and other factors, Article 3 prohibits "mutilation, cruel treatment and torture." It also prohibits "outrages upon personal dignity, in particular degrading treatment" against detainees "at any time and in any place whatsoever."

Even as the Bush administration was making headlines for its rhetorical reversal, Justice and Defense Department officials were arguing before Congress yesterday that Article 3 only applies to the most serious misconduct.

Additionally, the Article bans "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

That clause was the basis for the June 29 Supreme Court ruling against the military tribunal system designed by the Bush administration.

While Gen. England’s memo constitutes a shift in language for the Bush administration, which had previously insisted the Geneva Conventions did not apply to the captives imprisoned at Guantánamo, officials assert the memo does not represent change in how detainees would be treated.

Even as the Bush administration was making headlines for its rhetorical reversal, Justice and Defense Department officials were arguing before Congress yesterday that Article 3 only applies to the most serious misconduct.

"It is undeniable that some of the terms in Common Article 3 are inherently vague," Steven Bradbury, acting assistant attorney general at the Justice Department, told Senate Judiciary Committee members at a hearing on revamping the system used to try detainees. "Common Article 3 prohibits ‘outrages upon personal dignity, in particular, humiliating and degrading treatment,’ a phrase that is susceptible [to] uncertain and unpredictable application."

Bradbuy, as well as Daniel Dell’Orto, principal deputy general counsel at the Defense Department, also argued that applying the Uniform Code of Military Justice (UCMJ) would be "wholly unworkable for military-commission trials of unlawful combatants in the ‘war on terror.’" The Supreme Court called UCMJ the current standard on which to base trials of the detainees.

Bradbury conceded that, under UCMJ standards, prosecutors would have a difficult time proving the guilt of detainees held in military custody. "It is extremely difficult during an armed conflict to gather evidence in a way that meets strict criminal procedure requirements," he said, "whether collected on the battlefield, during military intelligence operations or during interrogations of detainees." He also acknowledged that the prohibition against using hearsay as evidence would render the "most reliable and probative evidence… inadmissible."

Bradbury said evidence deemed inadmissible by civil and military courts is often all the military has on some captives. He also complained the rules would "require members of the Armed Forces to leave the front lines to attend legal proceedings," a hardship that would effectively require soldiers "to fight Al-Qaeda members twice – once on the battlefield and then again through legal proceedings."

Dell’Orto chimed in against affording the detainees rights to legal counsel early in the process as required by the UCMJ. "It would greatly impede intelligence collection essential to the war effort to tell detainees before interrogation that they are entitled to legal counsel, that they need not answer questions, and that their answers may be used against them in a criminal trial," he argued.

The American Civil Liberties Union released a press statement that alternately commended and condemned the Bush administration for "showing signs of heading in the direction of restoring the rule of law" while simultaneously "urging Congress to abandon it."

In the statement, ACLU Director Anthony Romero said, "It's time for the government to stop trying to weasel out of obeying the Supreme Court and federal law."

"We have the best military justice procedures in the world, but the Justice Department is telling Congress to use a broken system instead of the best one," he said.

Amnesty International echoed that sentiment, urging the administration "not to gut [Article 3] protections by narrowly defining what constitutes outrages on personal dignity" and reiterating its call for an independent commission to "investigate all aspects of US detention policies, including the use of secret detention sites and the practice of extraordinary rendition."

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The NewStandard ceased publishing on April 27, 2007.

This News Report originally appeared in the July 12, 2006 edition of The NewStandard.
Jessica Azulay is a staff journalist.

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