Tuesday, July 11, 2006


Parsing the Pentagon's Geneva Conventions turnaround

To people who don't like to see the United States torturing its captives, the Bush administration tossed a big bone today. The Financial Times (FT) reported,

The White House confirmed on Tuesday that the Pentagon had decided, in a major policy shift, that all detainees held in US military custody around the world are entitled to protection under the Geneva Conventions.

The FT has learned that Gordon England, deputy defence secretary, sent a memo to senior defence officials and military officers last Friday, telling them that Common Article 3 of the Geneva Conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.1

This reverses the policy outlined by President George W. Bush in 2002 when he decided members of al-Qaeda and the Taliban did not qualify for Geneva protections because the war on terrorism had ushered in a "new paradigm…[that] requires new thinking in the law of war".

The policy U-turn comes on the heels of the Supreme Court ruling last month that the military commissions Mr Bush created to try prisoners at Guantanamo Bay contravened both US law and the Geneva Conventions.

When the Supreme Court recently rebuked the Bush administration for violating Article 3 of the Geneva Conventions, many took heart. As I noted at the time, of the challenges that decision posed for the Administration, the Geneva Conventions—not the U.S. Constitution—was the greater.

But members of the Bush administration make most announcements with their fingers crossed. And while they will lie at the drop of a hat, their preferred tactic is to redefine words to the point that their own mother wouldn't recognize them.

That is what happened, for instance, to the Geneva Conventions' prohibition on torture. The White House counsel at the time, Alberto Gonzalez, drafted a memo that for a time became the operative law of the land. In it Gonzalez suggested that only "organ failure, impairment of bodily function, or even death" constituted torture.

This was so darkly laughable that even some conservatives couldn't go along with the joke. But that didn't faze Bush & Co. They proceeded as if they were playing by the rules. And it didn't matter, they held all the power.

Then an awkward situation came up. In Bush's second term Attorney General Ashcroft resigned, and Bush wanted to appoint his very own torture-enabler—Alberto Gonzalez—to replace him. But Gonzalez had gotten a lot of bad press for that torture memorandum, and something needed to be done before his Senate confirmation hearings began. Something was.

On December 31, 2004, Jeffrey Smith and Dan Eggen reported on the front page of the Washington Post,

The Justice Department published a revised and expansive definition late yesterday of acts that constitute torture under domestic and international law, overtly repudiating one of the most criticized policy memorandums drafted during President Bush's first term.

In a statement published on the department's Web site, the head of its Office of Legal Counsel declares that "torture is abhorrent both to American law and values and international norms" and goes on to reject a previous statement that only "organ failure, impairment of bodily function, or even death" constitute torture punishable by law.
.... The new memo's public release came one week before the start of Senate Judiciary Committee hearings on Gonzales's nomination.

Well, wasn't that convenient!

So has the Bush administration finally "gotten religion," forced by the Supreme Court to see the error of its ways? That's what most of the talking heads of the media will imply, but I don't think so.

Once again, it just so happened that the nomination hearing for one of Bush's most odious judicial nominees—William Haynes, currently counsel to the Pentagon—began today.

Here's how People for the American Way (PFAW) describes him—

  • Haynes was an architect of the detention policies in the war on terror and signed off on allowing U.S. citizens to be stripped of their rights by being dubbed 'enemy combatants'
  • He oversaw a working group that provided the Bush administration with a report promoting unsettling policies on torture; the group argued that President Bush, in exercising his powers as commander in chief during times of war, is under no obligation to adhere to any rule of law - international or domestic - that bars the use of torture.

If that weren't bad enough, Haynes hardly knows anything about lawyering.

I'm afraid Haynes' nomination hearings have prompted this announcement rather than the recent Supreme Court opinion. The parallel with the hearings for Alberto Gonzalez is remarkable.

Related post
Guantánamo: "The cleanest place we're holding people" (6/30/06)

Follow-up post
I told you so... (7/23/06)



1Note the phrase "military custody." The memo does not apply to those held secretly by the CIA.

Since the CIA's mandate has been taken over more and more by the military, this may be their salvation. If they're the only government group left with the right to torture detainees, it may provide them a special "niche" role to which Bush & Co. will turn again and again. [back]

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