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Geneva cover for Gitmo detainees
The Bush administration said yesterday that the terrorism suspects held at the Guantanamo Bay prison should be treated humanely in accord with the Geneva Conventions, but Pentagon lawyers warned against granting them too many rights, such as full-fledged military trials.
“Application of court-martial rules would force the government either to drop prosecutions or to disclose intelligence information to our enemies in such a way as to compromise ongoing or future military operations, the identity of intelligence sources and the lives of many,” Pentagon lawyer Daniel J. Dell’Orto told the Senate Judiciary Committee yesterday. “Military necessity demands a better way.”
The hearings are a response to last week’s ruling by the Supreme Court that the Bush administration lacked the authority to try “enemy combatants” under military tribunals, instead of before civilian juries or courts-martial. In keeping with that ruling, the Pentagon issued a memo yesterday instructing all personnel to follow the 1949 Geneva Conventions in their treatment of enemy prisoners.
But the White House was quick to dispute that it was any sort of policy shift.
“It is not really a reversal of policy — humane treatment has always been a standard, and that is something they followed at Guantanamo,” White House press secretary Tony Snow said.
He said the administration now wants to work with Congress on a new policy for detainees, but said the Supreme Court’s ruling is complex and still not clear as to what degree the Geneva Conventions apply to the estimated 1,000 enemy prisoners held at Guantanamo Bay and elsewhere.
“It doesn’t mean that you have musical instruments for all of the detainees,” Mr. Snow said.
Yesterday’s Pentagon memo is further evolution of a detainee policy that has been much debated inside the administration for nearly five years.
Mr. Bush originally decided in 2001 that al Qaeda and Taliban detainees would be deemed “enemy combatants,” but not prisoners of war under the 1949 Geneva Conventions. He decided that as terrorists and not members of a nation-state army they were not covered by the conventions.
This non-prisoner-of-war status meant they would not get the full legal rights of the conventions. It allowed the Pentagon to set up a system of military commissions outside the U.S. civilian courts and outside the courts-martial procedures under the Uniform Code of Military Justice. The president did say the detainees would be treated in a way consistent with the Geneva Conventions, which outlaw torture and other abuses.
Now that the Supreme Court has ruled the commissions do not abide by the Geneva Conventions, which says detainees must be handled through a regularly constituted judicial system, the Pentagon decided to send out the July 7 memo making sure commanders know they must be in compliance with Geneva.
Now it is up to Congress to create a judicial system that meets Geneva’s requirement for a regularly constituted court system, but does not, in the Pentagon’s view, give detainees all the rights afforded a criminal defendant in the U.S.
Steven G. Bradbury, a Department of Justice lawyer, also told the Senate yesterday that special circumstances must be made for these particular prisoners.
“Of course, the terrorists who fight for al Qaeda have nothing but contempt for the laws of war,” he said. “They have killed thousands of innocent civilians in New York, Washington, and Pennsylvania — and thousands more in London, Madrid, Kenya, Tanzania, Yemen, Jordan, Indonesia, Iraq and Afghanistan.”
“As a matter of course, they kidnap relief aid workers, behead contractors, journalists and U.S. military personnel and bomb shrines, wedding parties, restaurants and nightclubs,” Mr. Bradbury said.
By Andrew P. Napolitano
Obama's veil of secrecy is pierced
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