U.S. to drop Geneva rule, officials say

Clause bars humiliation, degradation of detainees

June 05, 2006|By JULIAN E. BARNES | JULIAN E. BARNES,LOS ANGELES TIMES

WASHINGTON -- The Pentagon has decided to omit from new detainee policies a key tenet of the Geneva Conventions that explicitly bans "humiliating and degrading treatment," according to knowledgeable military officials, a step that would mark a further shift away from strict adherence to international human rights standards.

The decision culminates a lengthy debate within the Defense Department but will not become final until the Pentagon makes new guidelines public, a step that has been delayed. However, the State Department opposes the military's decision to exclude Geneva Conventions protections and has been pushing for the Pentagon and White House to reconsider, the defense officials acknowledged.

For more than a year, the Pentagon has been redrawing its policies on detainees and interrogation, and intends to issue a new Army Field Manual, which, along with accompanying directives, represents core instructions to U.S. soldiers worldwide. The process has been beset by debate and dispute, but the decision to omit Geneva Conventions protections from a principal directive comes at a time of growing worldwide criticism of U.S. detention practices and the conduct of American forces in Iraq.

The directive on interrogations, a senior defense official said, is being rewritten to create safeguards so that all detainees are treated humanely but can still be questioned effectively.

President Bush's critics and supporters have debated whether it is possible to prove a direct link between administration declarations that it will not be bound by Geneva and events such as the abuses at Abu Ghraib or the killings of civilians last year at Haditha, allegedly by Marines. But the exclusion of the Geneva provisions may make it more difficult for the administration to portray such incidents as aberrations. And it undercuts arguments that U.S. forces follow the toughest, most broadly accepted standards when fighting wars.

"The rest of the world is completely convinced that we are busy torturing people," said Oona A. Hathaway, an expert in international law at Yale Law School and a former law clerk to then-Supreme Court Justice Sandra Day O'Connor. "Whether that is true or not, the fact we keep refusing to provide these protections in our formal directives puts a lot of fuel on the fire. It makes people think we are violating these provisions left and right."

The detainee directive was due to be released in late April along with the Army Field Manual on interrogations. But objections from several senators on other field manual issues forced a delay. Senators objected to provisions allowing harsher interrogation techniques for unlawful combatants, such as terrorism suspects, as opposed to traditional prisoners of war.

The lawmakers argue that differing standards of treatment allowed by the field manual would violate a broadly supported anti-torture measure advanced by Sen. John McCain, an Arizona Republican. McCain pushed Congress last year to ban torture and cruel treatment and to establish the Army Field Manual as the uniform standard for treatment of all detainees. Despite administration opposition, the measure passed and became law.

For decades, it had been the official policy of the U.S. military to follow the minimum standards for treating all detainees as laid out in the Geneva Conventions. But in 2002 President Bush suspended portions of the Geneva Conventions for captured al-Qaida and Taliban fighters. Bush's order superseded military policy at the time, touching off a wide debate over U.S. obligations under the Geneva accord, a debate that intensified after reports of detainee abuses at Guantanamo Bay, Cuba, and at Iraq's Abu Ghraib prison.

Among the directives being rewritten after Bush's 2002 order is one governing U.S. detention operations. Military lawyers and other defense officials wanted the redrawn version of the directive to again embrace Common Article 3 of the Geneva Conventions.

That provision - known as a "common" article because it is part of each of the four Geneva pacts approved in 1949 - bans torture and cruel treatment. Unlike other Geneva provisions, Article 3 covers all detainees - whether they are unlawful combatants or traditional prisoners of war. The protections for detainees in Article 3 go beyond the McCain amendment by prohibiting humiliation.

However, the move to restore U.S. adherence to Article 3 was opposed by officials from Vice President Dick Cheney's office and by the Pentagon's intelligence arm, government sources said. David Addington, Cheney's chief of staff, and Stephen Cambone, the defense undersecretary for intelligence, argued that it would restrict the United States' ability to question detainees.

The Pentagon tried to satisfy some of the military lawyers' concerns by including some protections of Article 3 in the new policy, most notably a ban on inhumane treatment, but steadfastly refused to embrace the actual Geneva standard in the directive it plans to issue.

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