Saying OK — Reluctantly — to the Geneva Conventions

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With a strong nudge from the Supreme Court, the Pentagon today declared that all prisoners in U.S. military custody will henceforth be covered by the Geneva Conventions. The announcement brings Administration policy in line with last month's landmark Supreme Court ruling that military tribunals being set up for Guantanamo detainees are illegal. But many questions remain about how the Pentagon will implement the new policy.

Among the first Administration officials to make that point was Steven Bradbury, acting assistant attorney general of the Justice Department's Office of Legal Counsel, who testified before the Senate Judiciary Committee. He stressed that the Geneva Convention — which requires humane treatment as well as trials with legal rights for all prisoners — is unclear and open to interpretation: "The application of common Article 3 [of the Geneva Convention] will create a degree of uncertainty for those who fight to defend us from terrorist attack." The apparent message: Administration legal experts, as well as many Republicans, do not want to see Guantanamo's closure, or a weakening of the U.S. military incarceration procedures.

"As we develop legislation to abide by the recent United States Supreme Court decision," said Sen. George Allen, a presumed Republican presidential contender from Virginia, who recently returned from Guantanamo, "I believe that we can achieve security for Americans and abide by acceptable due process while gleaning information from these enemies. For our security, detainee operations in Guantanamo should continue with reasonable comportment of our actions with U.S. laws and treaties. Anyone who questions the importance of the Guantanamo Bay facilities should know most importantly that we are also deriving useful information from many of the detainees."

But others, including Sen. Arlen Specter, head of the Senate's powerful Judiciary Committee, warn that they do not intend to give the Administration a blank check in determining how detainees are treated. Indeed, the issue is one that divides Republicans far more than Democrats, who hailed the Supreme Court decision. "Now that the courts have forced the Bush Administration to comply with the Geneva Conventions with respect to detainees at Guantanamo," said Edward Markey, a senior member of the House Homeland Security Committee, "perhaps it will be more willing to stop sending detainees to foreign countries known to engage in torture."

Others found the Pentagon's announcements long overdue. Said Eric. M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra University and an adviser to Guantanamo prisoners legal teams: "Until the Bush administration, no President ever questioned that the Geneva Convention granted every prisoner in American custody basic legal and human rights... the significance of the Pentagon's announcement is simply that we'll now go back to a pre-9/11 legal regime and compliance with what has always been the law."

But the question remains exactly how the new law will be put into practice — and how long it will take. U.S. military instruction manuals, for example, are currently being updated to reflect the recent Supreme Court's decision as well as a law sponsored by Republican Sen. John McCain that specifically rules out torture. The update, which was initially supposed to be released months ago, is still not out.