U.S. to Comply with Geneva Treaty on Detainees
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GWEN IFILL: The Bush administration has adjusted its stated policy on enemy combatants held at Guantanamo Bay, Cuba, saying al-Qaida detainees are protected under the Geneva conventions.
The announcement, contained in a Pentagon memo, comes on the heels of a Supreme Court ruling rejecting a military tribunal system created to prosecute suspected terrorists.
White House spokesman Tony Snow said the new statement is not a policy reversal, because the president has always called for humane treatment.
But administration officials have repeatedly maintained over the years that the Geneva Conventions did not apply to combatants who did not represent countries signed onto the treaty. Defense Secretary Rumsfeld in 2002…
DONALD RUMSFELD, U.S. Secretary of Defense: Technically, unlawful combatants do not have any rights under the Geneva Convention.
GWEN IFILL: President Bush repeated that as recently as last year.
GEORGE W. BUSH, President of the United States: We said that they don’t apply under the Geneva Convention, but they’ll be treated in accord with the Geneva Convention.
GWEN IFILL: In today’s memo, Pentagon personnel were ordered to promptly review all policies and practices to ensure that they comply with the standards of the Geneva Convention’s Common Article 3. That article prohibits violence to prisoners, including humiliating and degrading treatment and torture.
Word of the Bush administration’s new stance came as the Senate Judiciary Committee opened hearings this morning on the issue of how detainees should be tried. California Democrat Dianne Feinstein asked Pentagon lawyer Daniel Dell’Orto to explain why the new memo was issued.
DANIEL DELL’ORTO, Dep. General Counsel, Department of Defense: In order to insure that that word got out and also that we had the opportunity to have our commanders in the field and others with responsibilities in this area report back that what they were doing was consistent with what our guidance had been previously, that memo went out.
It doesn’t indicate a shift in policy; it just announces the decision of the court and, with specificity, as to the decision as it related to the commission process.
SEN. DIANNE FEINSTEIN (D), California: Well, I know you regard the Geneva Conventions as vague, but let me ask it this way: Today, are the Geneva Conventions being carried out, Common Article 3?
DANIEL DELL’ORTO: We believe that the treatment that all detainees are receiving under DOD control, under DOD custody, are being treated in a manner that meets the Common Article 3 standard or exceeds it.
SEN. DIANNE FEINSTEIN: So the answer is yes?
DANIEL DELL’ORTO: Yes.
GWEN IFILL: But South Carolina Republican Lindsey Graham, a former lawyer in the Air Force, argued exceptions to the Geneva Convention protections should be allowed for some prisoners.
SEN. LINDSEY GRAHAM (R), South Carolina: The question is: Does it make sense to apply Common Article 3 to a group of people who do sign up to the convention, who show disdain for it, who would do everything in their power to not only trample the values of the Geneva Convention but every other treaty that we’ve ever entered into?
I agree with the president: They should be treated humanly. And I believe it is incumbent upon the Congress to reign in the application of Common Article 3 Geneva Convention to the war on terrorism, within our values.
GWEN IFILL: Justice Department lawyer Steven Bradbury agreed.
STEVEN BRADBURY, Department of Justice: The application of Common Article 3 will create a degree of uncertainty for those who fight to defend us from terrorist attack.
GWEN IFILL: But the central question before the committee today was how detainees should be tried, inside or outside the military justice system. After the Supreme Court outlawed the current system of military tribunals, or commissions, Chairman Arlen Specter and ranking Democrat Patrick Leahy both said Congress will craft new law.
SEN. ARLEN SPECTER (R), Pennsylvania: We’re not going to leave it to the Department of Defense or give the Department of Defense a blank check.
SEN. PATRICK LEAHY (D), Vermont: Military commissions should not be set up as a sham. They should be consistent with the high standard of American military justice that has worked for decades.
GWEN IFILL: Republicans are generally divided over whether to rewrite the law entirely or to tweak it to meet the Supreme Court’s concerns.
The debate over these issues came to a head this afternoon during confirmation hearings for Pentagon General Counsel William J. Haynes, an architect of the administration’s detainee policy. He’s been nominated to be a judge on the Fourth Circuit Court of Appeals.
SEN. EDWARD KENNEDY (D), Massachusetts: Do you believe that American officials could torture prisoners with impunity, in violation of the anti-torture statutes?
WILLIAM HAYNES, General Counsel, Department of Defense: Not only do I not believe that, the president has made very clear that the United States will not — as a matter of policy, does not do that.
Detainees entitled to all benefits
GWEN IFILL: Senate leaders have said they will not act on the overall issue of detainees' rights until after the August recess.
Joining us now are two senators who will help craft that legislation, Democratic Whip Dick Durbin of Illinois -- he returned from a trip to Guantanamo Bay yesterday -- and Republican John Cornyn of Texas.
Senator Durbin, since you've just gotten back from Guantanamo from a visit there, could you give us your sense of what difference this new memo, that was released by the Department of Defense, what difference that will make?
SEN. DICK DURBIN (D), Illinois: None. I asked the lead interrogator yesterday at Guantanamo, "If I had told you tomorrow" -- I didn't know about this memo -- but I said to him yesterday, "If I told you tomorrow you had to live by the Geneva Conventions, what would it change here?"
He said, "Nothing. We're following the Geneva Conventions, the Uniform Code of Military Justice, and we're compliant with the McCain torture amendment," which I co-sponsored. So there won't be any practical change at Guantanamo.
GWEN IFILL: So what's the point of this new memo then?
SEN. DICK DURBIN: Well, I think it's a recognition by the administration that the Supreme Court made it clear that they cannot take this all on themselves and try to redefine some basic standards.
Keep in mind, it wasn't until several years ago that this administration said we had to depart from the Geneva Conventions. Other presidents in other wars have followed it. We have really believed that it is the best way to treat prisoners, because we want our own prisoners, if soldiers are taken prisoner, to be treated that way, as well.
GWEN IFILL: Senator Cornyn, why is it if, as Senator Durbin suggests, there will be no substantive change in actual behavior at places like Guantanamo, why has the administration resisted the notion that non-combatants held, detainees held there, should be covered under this Common Article 3?
SEN. JOHN CORNYN (R), Texas: Well, Gwen, it's always been our policy to treat detainees humanely, but there are some very specific provisions by which a person, a country, their combatants are entitled to treatment as under the Geneva Convention as lawful combatants.
Terrorists, by definition, since they aren't representative of a military of a nation, since they don't wear uniforms, they don't observe the laws of wars -- indeed, they engage in the most barbaric sort of practices we can imagine against innocent men, women and children -- I think, while it's important that they be provided humane treatment and be tried, if they are tried in a regularly constituted court -- that's the main provision of Common Article 3 -- that they're not entitled to all of the benefits that would otherwise be accorded, because to do so really cheapens the value of recognition of a nation's combatants under the Geneva Conventions.
No differences with new policy
GWEN IFILL: Well, explain something to me, Senator Cornyn, because both Attorney General Gonzales and other administration officials have said, since the Supreme Court ruling a couple of weeks ago, that some of this Geneva Convention would be difficult to interpret, as applied to Guantanamo and the detainees there. Why would that be?
SEN. JOHN CORNYN: Well, I think the difficulty is, because these unlawful combatants, these terrorists, don't observe the laws of war, the question is: To what extent does the Hamdan decision require any aspect of the Geneva Conventions to apply to them?
And it's clear the court did say that Common Article 3 did apply, insofar as it relates to the kinds of tribunals or courts where their cases are tried. And otherwise, we've heard from the Department of Defense and other lawyers for the administration to say that, really, there's no real difference from current policy.
GWEN IFILL: Senator Durbin, I was interested to hear Mr. Dell'Orto, the Pentagon lawyer, say at the hearing today that detainees are receiving -- that all of the treatment that detainees are receiving under DOD control and under DOD custody is in a manner that meets Common Article 3.
Are you at all concerned that there are prisoners who are not under Department of Defense control, not under Department of Defense custody, who this would not apply to?
SEN. DICK DURBIN: The honest answer is we don't know if there's been a prisoner who's been transferred, rendition of a prisoner to another country under other circumstances. We're not privy to that information; it's not shared with members of Congress, at least not at my level.
And so we don't know if they've been sent to places where they are being treated humanely, but it's a perfectly valid question. If the United States is going to make it clear to the world that we're still consistent with the values that we've held for generations, then we certainly aren't off the hook by sending a prisoner to another country where he's mistreated.
GWEN IFILL: Senator Cornyn, I'd like your response on that question, as well. Do you have any concern about prisoners who may not be under the Department of Defense control and therefore not affected by this kind of policy?
SEN. JOHN CORNYN: Well, I don't have any information that would cause me concerns, except to say, Gwen, that it's important to recognize we're not just punishing ordinary criminal defendants. These are unlawful combatants captured on the battlefield during a time of war.
And it's important that we are able to obtain valuable intelligence from them which will allow us to detect, deter and disrupt future terrorist attacks.
And so that's what makes this different from an ordinarily criminal prosecution, and that's why we're going to be debating what the appropriate policies should be, insofar as the partnership Congress will have with the administration to try to work out how these individuals will be tried before military commissions.
GWEN IFILL: Senator Cornyn, can I ask you to respond to something else the Department of Justice official said today...
SEN. JOHN CORNYN: Sure.
GWEN IFILL: ... or said -- they have said last week, but repeated it today -- that this interpretation of Common Article 3 will create a degree of uncertainty for those who fight to defend us from terrorist attack. Do you believe that the Hamdan decision and this new restatement of policy today is actually putting fighting troops at a disadvantage?
SEN. JOHN CORNYN: Well, I think we're all trying to work our way through what the court meant in the Hamdan decision. We had hearings today on the Judiciary Committee; we'll have hearings on the Armed Services Committee on Thursday, which will be the committee primarily responsible for writing legislation.
But I think everyone agrees that Congress and White House, working together hopefully in a bipartisan way, ought to be able to work our way through this and provide the kind of certainty and stability that we need in order to know what the rules are and to apply them.
How to try unlawful combatants?
GWEN IFILL: Senator Durbin, let's talk about what the rules ought to be, based on your firsthand observations at Guantanamo yesterday, up until yesterday, and also just in your experience here in the Senate, as the Department -- as the Supreme Court kicked this over to the Senate, as far as the military tribunal portion of this goes, what should the Senate now be thinking to do to make sure the United States' policy in holding and prosecuting these alleged terrorists is in line with what the court has said is acceptable?
SEN. DICK DURBIN: Well, let me go back first to the earlier question.
GWEN IFILL: By all means.
SEN. DICK DURBIN: Our soldiers are trained to the standards of Geneva Conventions and the Uniform Code of Military Justice. That's their training; that's what they're told from the start.
So for the administration to suggest the Geneva Conventions are really going to be a new wrinkle and a real challenge to our soldiers is inconsistent with their basic training.
Secondly, what the court said in Hamdan is that, when we create these military commissions, we should model or at least base them off the Uniform Code of Military Justice, another body of law that currently exists.
They said that we want to treat people humanely, of course, but they went on to say we may need to change for a military commission some of the procedural aspects of the trial. That's where Congress comes in.
I think we sit down, Senator Lindsey Graham, a Republican of South Carolina, who said this is his approach, start with the Uniform Code of Military Justice, make the changes that may be necessary when it relates to hearsay or classified evidence, that are realistic in a war on terror. But start with a body of law that is recognized and one that really is based on due process.
GWEN IFILL: Does due process mean that these trials will look more like courts martials than look like what we have seen up until now, these tribunals?
SEN. DICK DURBIN: They would be closer to that model. And I asked Mr. Bradbury today at hearing, "So will a person be represented by counsel?" Yes. "Will they be aware of the charges against them?" Yes. "Will they be present during the hearing?" Yes. "Will they be able to allow evidence that was brought by torture in against the person who's charged?" He said no.
But there are some aspects that are gray and some that need to be resolved with legislative effort.
GWEN IFILL: Senator Cornyn, I want to ask you to respond to something another witness said today at the hearing -- that's former Solicitor General Ted Olson -- in which was concerned about the micromanagement of the judiciary cutting into the president's executive privilege, executive power. Do you see it that way?
SEN. JOHN CORNYN: Well, I do have some concern that, while we're fighting a battle in far-flung places across the globe, that we not tie the hands of our combatant commanders or our men and women in uniform.
I mean, the idea that you kick down a door and then say, "Well, first, let me read you your Miranda rights. You have the right to remain silent and so forth." I think we could readily see why the traditional approach to a criminal law enforcement matter doesn't really fit.
And so that's why I agree with Senator Durbin that the procedures are going to have to be varied to fit the practicalities of the situation and not tie the hands of our combatant commanders.
We can't give, for example, classified information about sources and methods that would allow retaliation or allow al-Qaida to cut off those lines of communication, which are valuable to help protecting the American people. So we're going to have to make some changes here that fits the practicalities of being at war and fighting a very dangerous enemy.
GWEN IFILL: Senator Durbin, do you worry at all about micromanagement by the judiciary on these matters?
SEN. DICK DURBIN: Well, that's what the Hamdan decision was all about. The Supreme Court, in what I think will be viewed in years to come as one of its most historic decisions, said to this president: You are not above or beyond the law. You have to live within the law.
And to use the authorization of military force that was passed by Congress as a blank check, no president can do that. And I thought Justice Stevens was articulate in saying to this administration: Go to Congress, and get the law passed.
And I will predict that, if the president comes forward in good faith, as we did with the Patriot Act, we will have a bipartisan effort to keep America safe. But what the Supreme Court said to the president was: You have to follow the law like every other person in this country.
GWEN IFILL: And, Senator Cornyn, finally, what do you think that bipartisan agreement should include?
SEN. JOHN CORNYN: Well, we ought to have a method by which unlawful combatants could be tried for war crimes in a way that's compatible with the Supreme Court's decision.
I think it would be very easy, really, for us to do, and I hope we don't get bogged down in either creating new obstacles to intelligence gathering or the specific needs of our troops during a time of war.
You know, ordinarily, you have a right to confront witnesses, but I hope we're not going to call our soldiers back from the battlefield in Afghanistan and Iraq to come testify in criminal-like trials in Guantanamo Bay.
So I think we can -- as long as we take some care to have some commonsense accommodation to the practicalities involved, I think we ought to be able to do this.
GWEN IFILL: Senator John Cornyn and Senator Dick Durbin, thank you both very much.
SEN. DICK DURBIN: Thank you.
SEN. JOHN CORNYN: Thank you.