Tuesday, July 11, 2006

What About Values?

The Financial Times of London carried the headline: “U.S. Reverses Policy on Military Detainee Protection.”

Not that everyone necessarily agrees with this judgment. White House Press Secretary Tony Snow said “It’s not really a reversal of policy” – adding that the objective now is “to find a way to properly do this in a way consistent with national security.”

Ah yes. When the tides run against the government, look always to the future and what it promises and try to downplay past decisions that return to haunt the policymakers.

Whenever such a policy re-orientation happens, you can be sure that much had been going on beneath the legal and the practical radars of daily life. Some of the more prominent blips on the video monitor that need to be expanded:

Deputy Secretary of Defense Gordon England signed the memo July 7. It was addressed almost exclusively to the civilian superstructure of the Department. The uniformed recipients were the Chairman of the Joint Chiefs of Staff and the Commanders of the five Combatant Commands: Central, Northern, Southern, European, and Pacific. England’s predecessor, Paul Wolfowitz, and other civilians (some departed from the Pentagon) were the driving force in the creation of the Pentagon’s world-wide detention system.

Conveniently, Secretary of Defense Donald Rumsfeld is traveling in Central Asia, Afghanistan, and Iraq and is therefore generally unavailable for comment.

Also, by breaking the story in Europe, the news is separated from the chief newsmaker – the president – who is spared having to answer questions. He also gets a longer play of the decision before he arrives in Russia for this week’s G-8 summit.

As it is, considering the subject of the memo (“Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense”), one can only marvel that – again – a British paper (Financial Times) broke a story that has profound consequences for the current U.S. administration’s claims to inherent executive authority in the conduct of the “global war on terror.”

Except for the Northern Command, which has as its area of operations the North American continent with its air and sea approaches, these commands operate outside the U.S. These are the warfighters, the ones who – in President Bush’s formulation – the country wants to be “fighting over there so that we won’t have to be fighting here.”

The memo cites the Court’s decision in Hamdan v. Rumsfeld as setting Common Article 3 as the standard for the treatment of all detainees – including al-Qaeda or pseudo-al-Qaeda – who have come under the control of the Department of Defense anywhere in the world. It does not, however, apply to detainees held by the Central Intelligence Agency or other non-military intelligence or operations units of the U.S. government. (Separately, the administration later said all detainees would have the same standards.)

Common Article 3 requires that in armed conflicts “not of an international character” that noncombatants must be treated humanely and that all such persons will not be subject to “humiliating and degrading treatment.” Moreover, any trials are to be conducted by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” This is a potential minefield of conflicting possible definitions of terminology and the reconciliation of varying practices among “civilized people.”

In the same vein, Military Order 1, while asserting that the Geneva Conventions did not apply to al-Qaeda, did provide that all detainees would be treated humanely “consistent with” military necessity. This presidential directive was then interpreted by the Defense Department’s General Counsel (who has since been nominated to be a judge on the U.S. Appeals Court for the Fourth Circuit) to permit – “may be legally available” – interrogation techniques and practices that most reasonable persons would classify as inhumane or degrading.

The news story on the policy reversal included the tidbit in its last paragraph that the memo had been prepared by Defense Department General Counsel William Haynes. Haynes’ confirmation hearing was in the afternoon of July 11.

The Senate Judiciary Committee held its first hearings on the effects of the Court’s decision on July 11. On July 10, Senator Arlen Specter (PA), the committee chairman, was invited to meet with the President at 12:00 noon on July 11 – right in the middle of the hearing.

And so the “coincidences” go on.

What will Congress do – and when? The latter is unclear. On the first point, options include rewriting laws, modifying current procedures starting from Military Order 1, or starting from the Uniform Code of Military Justice, making minor changes to the implementing Manual for Courts-Marshal that establish a parallel judicial system for detainees. In all the legalese, what I never saw was any reference to values.

More to follow.

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