U.S. to Give Geneva Rights to Detainees
The Bush Administration has announced that it will now give detainees their rights under the Geneva Convention.
White House spokesman Tony Snow said the policy, outlined in a new Defense Department memo, reflects the recent 5-3 Supreme Court decision blocking military tribunals set up by President Bush. That decision struck down the tribunals because they did not obey international law and had not been authorized by Congress.
The policy, described in a memo (pdf) by Deputy Defense Secretary Gordon England, appears to change the administration's earlier insistence that the detainees are not prisoners of war and thus not subject to the Geneva protections.
What to make of it? Read Law Prof Marty Lederman at Balkinization who says the "devil, of course, will be in the details."
1. What about the CIA?
2. The memo does not state that the Administration agrees with the Supreme Court's interpretation of Article 3, and does not foreclose the possibility that the Administration will promote legislation that would undermine the Court's ruling. Will the Administration, for instance, propose any legislation amending the War Crimes Act, or authorizing conduct that Common Article 3 would forbid? Etc.
3. And a possible point of significant dispute and/or misdirection: The letter states, correctly, that "humane treatment" is the "overarching requirement" of Common Article 3. It juxtaposes this truism with a reminder that the President had already directed all U.S. Armed Forces to treat detainees "humanely." But what the Administration means by "humane," and what Common Article 3 means by "humane," are entirely different animals.
See the examples Lederman provides as to what is "humane" under the Bush directive vs. what is humane under the Geneva Conventions.
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