MB Civic

By Michael Posner | July 18, 2006 | The Boston Globe

AFTER THE terrorist attacks of Sept. 11, 2001, senior officials in the Bush administration crafted a strategy for combating the grave threat posed by Al Qaeda. At the heart of the resulting doctrine was the notion that the United States is fighting “a global war against terror” that must be fought outside the constraints of existing law. Under these circumstances, the administration argued, adherence to the Geneva Conventions and other applicable laws is a luxury, not a necessity. Therefore, detainees in Iraq, Afghanistan, or at Guantanamo Bay have been detained and interrogated in what some have called “law-free zones.”

Late last month, the US Supreme Court rejected the concept of “law-free zones,” and demanded a clear legal framework for those in US custody.

In Hamdan v. Rumsfeld , the court struck down military commissions at Guantanamo. More broadly, it held that Common Article 3 of the Geneva Conventions, requiring humane treatment and other basic rights, applies to those in US custody.

On July 7, Gordon England, deputy secretary of defense, ordered a prompt review of rules and practices to ensure that the Department of Defense policies and practices are in compliance with Common Article 3. Senior officers have three weeks to conduct their review.

The decision to conduct such a review suggests willingness by some senior administration officials to reexamine existing policies and practices and bring them into conformity with the Supreme Court’s decision. Yet there is a deep and troubling division within the administration. A number of senior officials, including acting assistant attorney general Steve Bradbury, continue to resist any change in the administration’s approach.

In the weeks ahead, Congress and the administration will begin to decide how to address detention and interrogation policies going forward. As they do so, here are some essential elements that will allow us to test their resolve.

First, England’s memo applies only to the military, not to US intelligence agencies. The CIA and other intelligence agencies continue to operate secret detention facilities in Iraq, Afghanistan, and other parts of the world. Detainees in these facilities have no access to the International Committee of the Red Cross, and there is no acknowledg ment, even to their families, of their location, status, or condition of health. A clear indication of US compliance would be for it to provide access to the International Committee of the Red Cross to visit anyone in US custody.

Second, we should watch to see if the administration will comply with another of Common Article 3’s requirements — that of humane treatment of all detainees. Bradbury and others in the administration continue to resist full compliance with this requirement, which was reinforced last year by the McCain Amendment, a federal statute that bars all forms of cruel, inhuman, or degrading treatment.

It is important that the administration finally has revoked the Feb. 7, 2002, memo, which accepted the Justice Department’s assertion that “Common Article 3 of Geneva does not apply to either Al Qaeda or Taliban detainees.”

As Senator John McCain has reminded us, this is not about “them,” it’s about us. A concrete indication of compliance in this area will be the completion and publication of a new Field Manual on Interrogation clearly barring all forms of cruel, humiliating, and degrading treatment for anyone in military custody. This interrogation standard must be applied uniformly to the military and to the intelligence agencies.

Finally, the Supreme Court’s Hamdan decision requires that detainees tried by the United States for war crimes must be afforded judicial guarantees in accordance with the laws of war and, in particular, Common Article 3. It requires those guarantees “recognized as indispensable by civilized people.” As Congress and the administration work to assess a way forward in the aftermath of the Hamdan decision, the test of compliance will be whether they arrive at a system that very closely resembles that of courts-martial under the Uniform Code of Military Justice.

If the administration and Congress act on these three fronts, we will move from law-free zones to the rule of law, and take a giant step to restore America’s standing in the world.

Michael Posner is the president of Human Rights First.