WASHINGTON - Tuesday's announcement by the administration of US President
George W Bush that detainees held by the US military at Guantanamo Bay, Cuba,
and elsewhere would be treated in accordance with the Geneva Conventions might
simply mean business as usual.
The fact that senior administration officials, including White House spokesman
Tony Snow, denied that the decision constituted a reversal of the
administration's previous policy against affording the protections of Article 3
rights of the Geneva Conventions to terrorist suspects adds to the skepticism.
Snow insisted that all US detainees had always been treated humanely. "It's not
really a reversal of policy," Snow asserted.
Critics claim that the administration's past record - particularly its
definition of "humane" treatment - gave them little confidence that the move
would make any substantive difference.
"This looks like a PR [public relations] exercise," said Scott Horton, an
international law professor at Columbia University, who has played a major role
in the debate over the application of the Geneva Conventions to the
administration's "global war on terror".
"Given our experience dealing with this administration and the DOD [Department
of Defense] on these issues for a period of several years now, we're best
advised to be skeptical and cautious," he told Inter Press Service.
Horton and other analysts also noted that Tuesday's announcement applied only
to detainees in military custody and not to those held by the Central
Intelligence Agency (CIA) in various undisclosed locations around the world.
The CIA has reportedly used "water-boarding" and other aggressive interrogation
techniques that human-rights groups say amount to torture.
"Today's action is a significant step," said Larry Cox, the executive director
of the US section of Amnesty International, in a more hopeful take on Tuesday's
announcement. "However, we urge that these basic protections [under Article 3]
apply to all detainees, including those in secret CIA custody."
The decision, which came in the form of a memo by Deputy Defense Secretary
Gordon England, followed a Supreme Court ruling 10 days ago that the
administration lacked the constitutional authority to establish military
tribunals for terrorist suspects without the explicit approval of Congress.
The same ruling, Hamdan vs Rumsfeld, also asserted that all detainees in the
"war on terror" were entitled as a matter of law to the due process protections
guaranteed by Article 3 of the Geneva Conventions which, among other
provisions, bans the imposition of sentences by courts that fail to provide
"judicial guarantees which are recognized as indispensable by civilized
peoples" - a standard on which, the court suggested, the Pentagon's military
commissions fell short.
Article 3 also requires that all detainees be treated "humanely" under all
circumstances and bans "outrages upon personal dignity, in particular
humiliating and degrading treatment".
Until Tuesday's release of the England memo, which calls for "all DOD personnel
[to] adhere to these standards," the administration had denied that detainees
in the "war on terror" were entitled to Article 3 protections.
In a February 2002 directive prepared by political appointees in the Justice
Department, the Pentagon and the White House, over the objections of
then-secretary of state Colin Powell and senior military lawyers, Bush ordered
that Article 3 standards should "not apply to either al-Qaeda or Taliban
detainees".
Instead, the directive ordered that detainees be treated "humanely, and to the
extent appropriate and consistent with military necessity, in a manner
consistent with the principles of Geneva".
The administration has since insisted that all detainees have indeed been
treated "humanely" despite a flood of reports by human-rights groups, the
Federal Bureau of Investigation, former detainees and detainee attorneys about
practices ranging from sexual humiliation and exposure to extreme temperatures
to physical assaults and water-boarding, in which the subject is made to
believe that he is drowning.
A 2005 report by the deputy commander of the US Southern Command, which has
jurisdiction over Guantanamo, such techniques were reviewed and deemed
"humane".
"The problem is, they have hijacked the term 'humane' and pumped it full of
meaning that no one else in the world shares," according to Horton. "They take
words that we think we all understand and they give it a secret and opposite
meaning."
He pointed to statements by Snow and other senior officials on Tuesday as
evidence that England's memo may indeed have no substantive impact on the
treatment of detainees.
Pentagon spokesman Brian Whitman stressed that "humane treatment has always
been the standard for detention and interrogation operations of the Defense
Department".
Similarly, Daniel Dell'Orto, a senior Pentagon lawyer, insisted on Tuesday at a
Senate hearing on the future of the military tribunals that the administration
already complied with Article 3. "The memo ... doesn't indicate a shift in
policy," he said. "It just announces the decision of the court." He added that
US military forces currently held roughly 1,000 detainees worldwide, including
some 460 at Guantanamo.
Those statements were clearly of concern to Ari Cover, an expert at Human
Rights First, who noted that the England memo, which endorses Article 3, refers
directly to Bush's 2002 directive that explicitly denied Article 3 protections
to al-Qaeda and Taliban detainees even while it insisted that they would be
treated "humanely".
"My question is, how do these two memos square with each other?" he said. "I'm
hopeful that they're at least saying we're going to comply with the Supreme
Court, and hopefully it's a lot more than that."
He suggested that the lack of clarity may reflect the continuation of an
internal debate within the administration between hardliners, led by Vice
President Dick Cheney, who oppose Geneva protections for suspects in the "war
on terror", and the State Department and uniformed military who have long
supported them.
In this view, Tuesday's announcement may indeed have been PR designed mainly to
persuade Congress that the administration is acting in good faith and that only
minor changes to the Pentagon's military tribunals were needed to satisfy the
court's concerns.
It may also be designed in part to quiet popular outrage in Europe - including
appeals by a number of leaders there that Guantanamo be closed - at US
detention practices in advance of Bush's trip at the weekend to the Group of
Eight summit in St Petersburg, Russia.
Still, activists remain hopeful that Tuesday's announcement indicates that the
pro-Geneva faction within the administration has gained the upper hand.
"I think it's moving back towards where it should have been all along," said
Katherine Newell-Bierman, who covers detention policy for Human Rights Watch.
"I think the military wants this; they want standards that reflect their values
and training."
