In the aftermath of the September 11 attacks, President Bush vowed to hunt down those responsible and said new rules applied to U.S. efforts to fight terrorism. Among those rules was less legal protection for enemy combatants who were swept up in raids across the world and held in such U.S. prison camps as Guantánamo Bay in Cuba and Abu Ghraib in Iraq, which became the infamous site of inmate torture and abuse.
But on Tuesday, the administration appeared to take a significant step away from its hard-line stance in a memo from Deputy Defense Secretary Gordon England, which stated that a key clause of the Geneva Conventions — which govern the treatments of prisoners of war (see "What Are The Geneva Conventions?") — applies to terrorism suspects, and specifically to the battle with al Qaeda and the Taliban.
The Supreme Court recently ruled that Article 3 of the Geneva Conventions, which prohibits "humiliating and degrading treatment" and requires full and fair trials, applies to al Qaeda prisoners. Administration officials suggested Tuesday that the memo simply reiterated what is already its policy — that detainees be treated "humanely," The New York Times reports.
After years of worries from some within the administration that the U.S. stance on terror detainees was harming its image abroad, the Gordon England memo represents a major turnabout from an executive order issued by Bush on February 7, 2002, in which he said that Article 3 did not apply to al Qaeda or Taliban detainees. The Times reported that after the memo was released, the White House confirmed that it had formally withdrawn part of the 2002 order and accepted that Article 3 now applied to Qaeda detainees.
"As a result of the Supreme Court decision, that portion of the order no longer applies," the White House said in a statement released Tuesday. "The Supreme Court has clarified what the law is, and the executive branch will comply."
Experts called the change an "important course correction" and said the U.S. should have anticipated that it would have to adjust its policies, especially when no new major attacks occurred on U.S. soil, making the harshest measures seem less justifiable.
"As time passed, and no more buildings were blowing up, it was no longer an emergency, and the rules had to be renegotiated," Colorado College history professor Dennis Showalter told the Times.
The paper reported that the memo could have widespread implications, as it appears to apply to an estimated 1,000-plus al Qaeda and Taliban terror suspects in the custody of the CIA or other American intelligence agencies around the world.
Less than 24 hours later, the administration changed course again when it said it would ask Congress for legislation that would limit detainees' rights. On Wednesday, the Times reported that administration lawyers urged Congress to pass legislation approving the tribunals that the Supreme Court had ruled that President Bush could not set up on his own. The proposed legislation would narrowly define the rights that the U.S. grants to terrorism detainees in compliance with Article 3 of the Geneva Conventions.
Tuesday's apparent about-face is actually part of a slow, steady backslide on the administration's initially hard-line stance. The 2002 presidential order said that deciding how the Geneva rules would apply to al Qaeda prisoners "involves complex legal questions," specifying that they did not apply to terror suspects, but that "our values as a nation" required that detainees be treated humanely, even if they are not legally entitled to such treatment. A year later, the administration decided that Article 3 would be applied to all prisoners captured in Iraq, but the May 2004 revelations of prisoner abuse at Abu Ghraib proved that the policy was not always being followed (see "U.S. Soldier Receives Maximum Sentence For Role In Iraqi Prisoner-Abuse Scandal").
In response to the abuse scandal, the Defense Department repeatedly whittled down the list of approved interrogation techniques and in 2004, the Justice Department formally withdrew a 2002 opinion that said nothing of treatment resulting in "organ failure" was banned as torture, according to the Times. Last year, former prisoner of war Senator John McCain forced the administration to accept legislation he proposed that would ban "cruel, inhuman or degrading treatment" of prisoners held by the United States anywhere in the world.
The latter came after several attempts by Vice President Dick Cheney's office to pressure Pentagon officials to strike language from its guidelines that cited the Geneva Conventions in prohibiting cruel and degrading treatment.
At the same time, the Supreme Court was slowly chipping away at some of the administration's key claims on presidential power regarding terrorism detainees, ruling in 2004 that American courts had the authority to decide whether foreign terror suspects held at Guantánamo Bay had been rightfully detained. And in June, it rejected the administration's rules for military commissions set up to try Guantánamo detainees, saying they didn't meet the standards set by U.S. law and the Geneva Conventions.
According to the Times, it was the June ruling that prompted England's memo, in which he wrote, "it is my understanding" that all current Defense Department rules were already in compliance with Article 3. But the wording of the memo suggested that in light of all the policy tweaking since 2002, England wasn't sure everyone was on the same page. "I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standard of Common Article 3," he wrote.
Despite the shift indicated by the memo, the administration would not comment on whether it had agreed to extend that coverage to captives believed to be held by the CIA in undisclosed locations, according to the Los Angeles Times. And a Defense Department lawyer said that closer adherence to the Geneva Conventions rules would not affect "rendition" policies, where prisoners are secretly flown to third-party countries — some of which have reputations for engaging in torture — for questioning and detention (see "Report Of 'Covert' CIA Jail Sparks Human-Rights Investigation").
In addition to the public-relations boost the move could give the U.S. overseas, the change might actually help U.S. troops on the ground in Iraq and Afghanistan, The Washington Post reported. Because it removes some of the ambiguity about what protections detained fighters are entitled to, it could help clear up the confusing policies that have contributed to the culture of abuse that led to the torture of detainees at Abu Ghraib and elsewhere.
"I think it will be welcomed," agreed Tom Malinowski, the Washington, D.C., director for Human Rights Watch told the Post. "It provides greater clarity and returns the military to a standard every soldier, sailor and Marine trains on."
[This story was originally published at 9:09 a.m. ET on 07.12.2006]