WASHINGTON—The Bush administration's decision two years ago to reject Geneva Convention protections for combatants captured in the war on terrorism contributed to the abuses of prisoners in Iraq and Afghanistan, several military law experts and former officers said.
Some lawyers close to the administration strongly disagree. They see the Iraq prison scandal as separate from how al-Qaida and Taliban combatants have been treated.
If the Bush administration's positions on prisoners' rights are seen as condoning abuses, it could exacerbate tensions between the United States and its allies and between the administration and the uniformed military. It could also endanger U.S. troops taken prisoner in the future.
A focal point in the debate is a January 2002 memo to President Bush from White House Counsel Alberto Gonzales, Bush's official lawyer, summarizing the pros and cons of denying Geneva protections to detainees. It also anticipated possible negative political consequences, such as "widespread condemnation among our allies."
The memo also said the United States hadn't denied prisoner protections in any conflict since the conventions went into effect in 1949. Doing so, Gonzales wrote, "could undermine U.S. military culture, which emphasizes maintaining the highest standards of conduct in combat."
Secretary of State Colin Powell and military lawyers fought the policy change, seeking POW status for all detainees. But President Bush decided that the urgent need for information from detainees overrode Geneva concerns in what Gonzales and Bush have called "a new kind of war."
That policy led to the indefinite detention of hundreds of detainees at the Guantanamo prison camp in Cuba and at others in Afghanistan and elsewhere. Some have been subjected to "stress and duress" techniques that may violate Geneva Convention rules.
In Iraq, military officers have said that while they tried to follow the Geneva Conventions, they were under pressure last fall to get better information from suspected insurgents. Some officers said interrogators adopted the more coercive techniques used in Guantanamo and Afghanistan.
The abuses shown in photos taken at the Abu Ghraib prison can't be separated from Bush's position on prisoners' rights, some legal experts have concluded.
"What's clear from that (Gonzales) memo is that from the start, the administration was looking for ways to skirt the rule of law, and now we're seeing some of the consequences," said Scott Silliman, a former top Air Force lawyer, a self-described Republican and the head of the Center on Law, Ethics and National Security at Duke University.
Silliman noted that Gonzales' memo even predicted that the policy could damage U.S. military standards for handling prisoners.
Silliman said he was "surprised that the key legal recommendation on the Geneva Conventions" came not from experienced military lawyers, but from a White House counsel.
Members of the judge advocate general (JAG) corps of each service were overruled or frozen out of key legal decisions in the war on terror and in Iraq, said Silliman and Jordan Paust, a law professor at the University of Houston.
JAG lawyers complained vociferously last year when the Iraq war started that they were "cut out" of supervising interrogations, according to one former officer who spoke on condition of anonymity. He said they'd supervised questioning in previous conflicts.
Silliman, who served in the first Gulf War, said JAG oversight of interrogations is a good way to prevent abuses and insure that the Geneva Conventions are followed.
Paust, who taught at the Army's JAG school in the 1970s, said the administration "made a plan to violate the law of war, and now we're seeing the end result of that policy."
That conclusion is way off base, said David Rivkin, a Washington lawyer who served in the Justice Department during the Reagan and first Bush administrations. The prison scandal in Iraq is "outrageous, but separate" from the earlier debate over prisoner protections, he said.
"This argument that there's a direct nexus between those decisions and Iraq, or that it created an atmosphere that allowed (the prison scandal) to happen, is simplistic and just wrong," Rivkin said.
The overall treatment of detainees, from Afghanistan to Guantanamo to Iraq, has been good, Rivkin said, and administration officials have pledged to treat all prisoners humanely, even terrorist suspects.
"The fact that the JAGs don't like some of these decisions, or that there's creative tension between departments, is not a bad thing," Rivkin said. "There's always disagreement within the executive branch."
Some legal experts hope an investigation by Maj. Gen. George Fay, the Army deputy chief of staff for intelligence, will show how interrogation practices in Afghanistan and Guantanamo influenced interrogations in Iraqi prisons.
The stakes are high. Defense officials said Friday that so far, they've launched 33 criminal investigations of detainees' deaths in Iraq and Afghanistan.
(c) 2004, Knight Ridder/Tribune Information Services.