WASHINGTON—In a major reversal of a keystone policy in its war on terrorism, the Bush administration announced Tuesday that all detainees in U.S. military custody, including those at Guantanamo Bay, Cuba, are entitled to Geneva Convention protections that prohibit humiliating treatment and torture.
The change reflects the Pentagon's response to the Supreme Court's 5-3 decision last month that struck down the administration's makeshift formula for military tribunals at Guantanamo, declaring their procedures unconstitutional and a violation of Geneva Convention obligations.
The two-page Pentagon memo repudiates a core element of the legal foundation of President Bush's approach to dealing with terrorism. Bush and his legal advisers initially had said the Geneva Conventions didn't apply to the war on terrorism because it was a new type of conflict that demanded more aggressive action.
In a 2002 memo, then-White House counsel Alberto Gonzales told Bush that this nontraditional war "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."
Vice President Dick Cheney and White House spokesmen made clear in many public statements since 2002 that they didn't think that terrorism suspects deserved the rights that the Geneva Conventions granted to enemy soldiers. At the same time, Bush has said repeatedly that his administration is committed to complying with the Geneva Conventions, but he's also reserved the right to waive them if he sees fit as commander in chief.
The new Pentagon memo doesn't change captives' status as enemy combatants—not prisoners of war—nor does it suggest that practices will change at Guantanamo, the remote interrogation and detention outpost at a U.S. naval base in southeast Cuba where commanders defend the treatment of its 450 captives as humane.
In addition, the memo doesn't bind the CIA in its treatment of detainees, because the CIA isn't part of the Defense Department. The CIA reportedly operates a network of secret prisons around the world for terrorism suspects, and has handed over others to countries that are accused of using torture.
Senate Democratic leader Harry Reid, D-Nev., was one who suggested that the Pentagon policy didn't cover CIA activities, but said "that will have to be dealt with at a different time."
The new memo, signed by Deputy Defense Secretary Gordon England, declared that Article 3 of the Geneva Conventions "applies as a matter of law to the conflict with al Qaeda." His memo doesn't, however, embrace all the terms of the Geneva Conventions.
Article 3 of the international standards prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment."
The administration's policy shift repudiates a six-week burst of early Guantanamo practices, which FBI agents described in internal e-mails as involving chaining captives for so long that they urinated and defecated on themselves. Military guards or interrogators also allegedly tethered captives to dog leashes, wrapped them in Israeli flags and exposed them to extremes of hot, cold and blasting music to break their resistance and spill secrets.
The Pentagon estimated Tuesday that it had about 14,000 captives in U.S. military custody: 13,000 in Iraq, 550 in Afghanistan and 450 at Guantanamo.
Critics hailed the developments as a clear-cut commitment to international treaty obligations.
"After more than four years of lawlessness, the Defense Department took a big first step toward complying with federal law," a statement from the American Civil Liberties Union said.
The Pentagon announced the policy change Tuesday as Senate Judiciary Committee Chairman Arlen Specter, R-Pa., convened the first of three congressional hearings this week on how to try war-on-terrorism captives as alleged war criminals without relying on hearsay evidence and possible secret, coercive interrogations.
Vermont Sen. Patrick Leahy, the senior Democrat on the committee, accused the White House of adopting policies that "violated fundamental American values, damaged our international reputation and delayed and weakened prosecution of the war on terror."
"I find it hard to fathom that this administration is so incompetent that it needs kangaroo court procedures to convince a tribunal of United States military officers that the `worst of the worst' imprisoned at Guantanamo Bay should be held accountable," Leahy said.
In its 5-3 decision last month in Hamdan v. Rumsfeld, the Supreme Court invited Congress to write a law governing military trials of detainees in the war on terrorism. At issue is how to shape a court that protects classified information, allows the government to offer a robust prosecution and permits alleged war criminals to confront their accusers within a framework of law.
Witnesses offered contrasting recommendations Tuesday.
At one extreme, former Solicitor General Theodore Olson, whose wife was killed in the Sept. 11 terrorist attacks, urged Congress to nullify several key Supreme Court decisions that recognized detainees' rights, such as civilian attorneys and recourse to U.S. courts. He also warned that a war court that honors constitutional protections would have a chilling effect on the battlefield.
"Do you have to knock and announce and wait for a bomb to go off?" said Olson, arguing that terrorists who "want to destroy the Constitution" don't get Bill of Rights protections.
On the other extreme, Yale Law School Dean Harold Hongju Koh, sitting beside Olson, urged Congress to recognize the rights of suspected terrorists not because they'd do the same for captured U.S. soldiers, but for the sake of American society.
Even members of organizations that never signed the Geneva Conventions are entitled to "minimal humane treatment," Koh said, because "it's about what we are and what we do. . . . Whales have not signed the Whaling Convention. It's about how we treat them."
In between, Sen. Lindsey Graham, R-S.C., warned administration attorneys that any new war court would be modeled after the Pentagon's Uniform Code of Military Justice—a legal system parallel to civilian courts—and would start with the assumption that terrorism suspects got the same rights as U.S. soldiers who were facing military justice, before stripping away certain rights on a case-by-case justification.
"We can get a product that will pass court muster and the nation can be proud of. If you fight that it's going to be a long hot summer," Graham, an Air Force Reserve lawyer, told Defense and Justice Department attorneys, who advocated that Congress legislate the system that the Supreme Court ruled unconstitutional last month.
When Gonzales, who's now attorney general, wrote his 2002 legal memo waiving the Geneva Conventions as "quaint," he assured Bush that he was on solid legal ground, but his argument provoked intense debate within the administration.
Then-Secretary of State Colin Powell argued that claiming an exemption from the Geneva Conventions would "reverse over a century of U.S. policy" and increase the risk that captured American troops would be abused.
Powell also warned, correctly as it turned out, that Bush's approach would result in "a negative international reaction" that would undermine allied support and hinder cooperation on other issues.
The White House announced its position on the Geneva protections on May 7, 2003, asserting that al-Qaida terrorists had no claim to international protections.
"The war on terrorism is a war not envisioned when the Geneva Convention was signed in 1949," then-White House spokesman Ari Fleischer said at the time.
Cheney offered a similar rationale a year later.
"If you've got somebody who is wearing civilian clothes, killing civilians, not abiding by the laws of the war, then you've got a set of circumstances in which you've got unlawful combatants. And those people do not need to be treated under the Geneva Convention," Cheney told Fox News. "A lot of the folks down in Guantanamo fall into that category."
In claiming an exemption from the international law on prisoners' rights, Bush said the United States nevertheless would adhere to the Geneva Conventions' standards as a matter of policy. The distinction is subtle, but critics said it signaled interrogators that they could push the limits of acceptable behavior when dealing with terrorism suspects.
"I think one of the things they are concerned about is war crimes," said John Hutson, the dean of the Franklin Pierce Law Center in Concord, N.H., and a former Navy judge advocate general. "It's harder to be prosecuted for violating a policy than it is for violating a law."
Raymond M. Brown, a visiting professor at the Seton Hall University School of Law in New Jersey and an expert on international criminal tribunals, called Tuesday's developments "a big story. . . . It clearly marks a departure because the attorney general wrote the famous memo saying the Geneva Convention was obsolete, in addition to which the Defense Department has taken the position that it isn't bound by it. The signing statement of the president on the McCain amendment says in his view the executive branch believes it has the right to define torture unilaterally."
When Bush signed a statute into law last year sponsored by Sen. John McCain, R-Ariz., that outlawed torture of detainees, the president attached a statement to it declaring that he reserved the right to ignore its restrictions if he felt it necessary as commander in chief.
Brown said it would be disingenuous for the administration to suggest that it already was complying with the Geneva Conventions. "The only reason they're changing is because of Hamdan. Hamdan gives them no choice. I'd argue it gives them no choice even if Congress says they have a choice, but there will be debate."
To read the new Defense Department policy memo online, go to www.miami.com/multimedia/miami/news/0711gitmo.pdf.
(McClatchy-Tribune correspondents Ron Hutcheson and Drew Brown contributed to this article.)