Will US military treat detainees differently now?
A Pentagon memo and new White House statements clarify the standard, but few expect sweeping changes in practice.
In the Pentagon memo that officially extended the protections of the Geneva Conventions to detainees in the war on terror, the Defense Department's second-in-command included this carefully qualified statement.
"It is my understanding that ... existing [Defense Department] orders, policies, directives, executive orders, and doctrine comply with the standards," wrote Deputy Defense Secretary Gordon England in the memo, released Tuesday.
To some, it seems like a hollow homage to the Bush administration's assurances that military detainees are treated "humanely." But to former Army interrogator Mike Ritz, it sounds about right.
Since the fallout from Abu Ghraib spread throughout the military, "a lot of interrogators' hands are tied," says Mr. Ritz. This is not all bad, he adds: "It is important that interrogators know what the boundaries are."
But so far as he is concerned, Tuesday's memo will not usher in sweeping changes in how the military treats detainees. Rather, its significance is in the message that the United States is abandoning its efforts to exploit a legal gray area outside the Geneva Conventions and is willing to embrace the increased safeguards against torture that the document represents.
"The big difference is that the US was so slow to even admit that it would follow the Geneva Conventions," says Ritz. "At least we're not talking about that anymore."
In many respects, the memo would appear to shut the door on one of the most controversial issues to beset the military since the beginning of the war on terror. By stating that members of Al Qaeda and the Taliban were not protected by Common Article 3 of the Geneva Conventions, which sets minimum standards for detainee rights, the Bush administration opened itself to claims that it could torture and mistreat detainees without legal consequence.
In his Feb. 7, 2002, executive order, President Bush said the "armed forces shall continue to treat detainees humanely." But a concern was that the term remained vague, and subsequent pictures of detainee abuse at Abu Ghraib portrayed a detainee system out of control. In addition, detainees at CIA facilities appeared to be exempt from any right to humane treatment. According to a February report by Human Rights Watch, at least 98 detainees have died in US custody.
"Soldiers are taught to apply the Geneva Conventions," says Michael Nardotti, former Judge Advocate General of the Army. "When you tell them that you are no longer applying them, then what standard are you looking at?" The England memo, he adds, is "significant in that it clears up some of the confusion."
Perhaps more important, the administration said Tuesday that the CIA would also be bound to the Geneva Conventions in its treatment of detainees. Few have any idea of what this will mean practically, because CIA activities are so little known.
In military facilities, though, former Army interrogator Ritz says many of the Geneva requirements are already in place. For one, interrogators have always been trained in the Geneva Conventions. "In training, it's stressed that you don't even put a hand on a source or you will go to jail," he says. "Probably what we saw [in instances of abuse] is a lack of supervision or supervisers who thought it would behoove them to look the other way."
Moreover, he says, the reaction to Abu Ghraib has created a hypersensitivity. It is at once good and bad. "If we condone [torture], it's a very, very slippery slope and we surely would be headed down it," Ritz says. "But ... announcing to the public what the US is and isn't capable of doing takes away an interrogator's most powerful weapon: the unknown."
Others aren't so convinced that the military has been on its best behavior. If Deputy Secretary England felt certain that the military was complying with all its regulations, why did he take another page to lay out the rules of the Geneva Conventions and demand a militarywide review, they ask.
"He's acknowledging the reality that compliance has not been perfect," suggests John Hutson, former Judge Advocate General of the Navy.
Regardless, he and others say, the memo sends a strong message to troops, Congress, and the international community. After such a long US fight to exempt "enemy combatants" from Geneva protections, a letter from such a senior Pentagon official represents a "course correction" for this administration, says Scott Silliman, a former Air Force lawyer who now teaches at Duke Law School in Durham, N.C.
What it means for the military tribunals created to try enemy combatants is less clear. The tenor of the memo – and of subsequent statements by the White House – suggests that the administration is moving away from its insistence that the tribunals differ markedly from military courts-martial. Previously, the administration had set up tribunals that would allow hearsay as evidence, for example, and allow prosecutors to present sensitive evidence that would be kept secret from the defendant.
The change in position is motivated by the US Supreme Court, which on June 29 struck down the terror tribunals as needing congressional approval. Even so, the administration's apparent willingness to comply with the decision so completely is "remarkable," says William Banks, a military-law expert at Syracuse University.
Still, there are questions. At a congressional hearing Tuesday, Pentagon lawyers pressed Congress to pass a law allowing terror tribunals like the ones originally laid out by Mr. Bush. Given the conciliatory tone of the memo and the White House statements, "it's a disconnect," says Professor Silliman. "We'll have to wait and see ... if the administration meant what it said."