News Analysis: Bush takes step back on terrorism and presidential power
News Analysis: Bush takes step back on terrorism and presidential power
By Scott Shane
Copyright by The New York Times
Published: July 12, 2006
WASHINGTON From the outset, President George W. Bush had declared that the battle against Al Qaeda would be a war like no other, fought by new rules against new enemies not entitled to the old protections afforded to either prisoners of war or criminal defendants.
But the White House acknowledgment on Tuesday, that a key clause of the Geneva Conventions applies to Qaeda detainees, as a recent Supreme Court ruling affirmed, is only the latest step in the gradual erosion of the administration's aggressive legal stance.
The administration's initial position emerged in 2002 only after a fierce internal legal debate, and it has been revised in the face of international opinion, congressional curbs and Supreme Court rulings.
Two central ideas of the war on terror - that the president could fight it exclusively on the basis of his constitutional powers and that terrorist suspects had few, if any, rights - have been repeatedly modified.
Scholars debated the meaning of a Defense Department memo made public on Tuesday that declared that Common Article 3 of the Geneva Conventions "applies as a matter of law to the conflict with Al Qaeda."
Administration officials suggested that the memo really only restated what was already policy - that detainees must be treated "humanely." But what was undeniable was that the president's executive order of Feb. 7, 2002, declared that Geneva's Article 3 did not apply to Al Qaeda or Taliban detainees, and the newly released memo, written by Deputy Defense Secretary Gordon England, said it does.
After the Pentagon released the memo, the White House confirmed that it had formally withdrawn part of the 2002 order and accepted that Article 3 of the Geneva Conventions now applies to Qaeda detainees. That article prohibits "humiliating and degrading treatment" of prisoners and requires trials "affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
"This is an important course correction, and there are political ramifications to it," said Scott Silliman, an expert on the law of war at Duke University. Top defense officials "never really clarified when Geneva applied and when it didn't," he said.
Richard Kohn, a military historian at the University of North Carolina, said the administration may have anticipated that it would have to adjust its policies, formed under immense pressure after the 2001 attacks.
"They were going to reach as far as possible to prosecute this war, and if they were forced to scale back, they'd scale back," Kohn said. "Almost from the beginning, the administration has had to back away and fuzz up the issues."
If there has been a retreat, it may in part reflect a change in the perceived threat from Al Qaeda since the disorienting days after 9/11. As months, then years, passed without a new attack in the United States, the toughest measures seemed steadily less justifiable.
"As time passed, and no more buildings were blowing up, it was no longer an emergency and the rules had to be renegotiated," said Dennis Showalter, professor of history at Colorado College.
In retrospect, all the contradictions that have emerged in the last four years were present in embryo in the 2002 presidential order.
The order began by noting that "our recent extensive discussions" had shown that deciding how Geneva rules would apply to Qaeda prisoners "involves complex legal questions." It said the conventions' protections did not apply to terrorist suspects - but also said "our values as a nation" nonetheless "call for us to treat detainees humanely, including those who are not legally entitled to such treatment."
In 2003, the administration decided that Article 3 would be applied to all prisoners captured in Iraq - even non- Iraqi members of Al Qaeda. But the May 2004 revelations of abuse of prisoners at Abu Ghraib showed that the policy had not always been followed, and in response, the Defense Department repeatedly whittled down the list of approved interrogation techniques.
In 2004, the Justice Department reversed course as well, formally withdrawing a 2002 opinion asserting that nothing short of treatment resulting in "organ failure" was banned as torture.
In late 2005, the administration was forced to accept legislation proposed by Senator John McCain, Republican of Arizona, to ban "cruel, inhuman or degrading treatment" of prisoners held by the United States anywhere in the world.
In the meantime, the Supreme Court was knocking down some of the administration's key assertions of presidential power in the battle against terror.
In Rasul v. Bush in 2004, the court ruled that U.S. courts had the authority to decide whether foreign terrorist suspects held at Guantánamo Bay were rightfully detained. And on June 29, in Hamdan v. Rumsfeld, the court rejected the administration's rules for military commissions set up to try Guantánamo detainees, saying it had failed to seek congressional approval and had fallen short of the standards set both by law and the Geneva Conventions.
It was the Hamdan ruling that prompted England's memo. "It is my understanding," he wrote, that all current Defense Department rules were already in compliance with Geneva's Article 3.
But England's wording suggested that after all the policy adjustment since 2002, he was not certain everyone was operating from the same playbook: "I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standard of Common Article 3."
England's uncertainty was not surprising, Silliman said. Mixed messages over exactly which rules applied where, and which Geneva protections were to be honored and which ignored, were at the root of prisoner abuse scandals from Guantánamo to Iraq to Afghanistan, he said.
"It's clear when you look at Abu Ghraib and everything else that there was a tremendous amount of confusion," Silliman said.
Even as legal experts parsed England's memo, confusion lingered.
The American Civil Liberties Union welcomed the memo as "a first big step," toward ending "four years of lawlessness" on detainee issues.
But it also noted that, in testimony Tuesday, other administration officials suggested that Congress simply adopt as law the proposed military commissions in exactly the form that critics say falls far short of Geneva's Article 3.
That skepticism was shared by Martin Lederman, a former Justice Department official now at Georgetown University's law school.
"The administration has fought tooth and nail for four years to say Common Article 3 does not apply to Al Qaeda," Lederman said. "Having lost that fight, I'm afraid they're now saying, 'Never mind, we've been in compliance with Article 3 all along.'"
By Scott Shane
Copyright by The New York Times
Published: July 12, 2006
WASHINGTON From the outset, President George W. Bush had declared that the battle against Al Qaeda would be a war like no other, fought by new rules against new enemies not entitled to the old protections afforded to either prisoners of war or criminal defendants.
But the White House acknowledgment on Tuesday, that a key clause of the Geneva Conventions applies to Qaeda detainees, as a recent Supreme Court ruling affirmed, is only the latest step in the gradual erosion of the administration's aggressive legal stance.
The administration's initial position emerged in 2002 only after a fierce internal legal debate, and it has been revised in the face of international opinion, congressional curbs and Supreme Court rulings.
Two central ideas of the war on terror - that the president could fight it exclusively on the basis of his constitutional powers and that terrorist suspects had few, if any, rights - have been repeatedly modified.
Scholars debated the meaning of a Defense Department memo made public on Tuesday that declared that Common Article 3 of the Geneva Conventions "applies as a matter of law to the conflict with Al Qaeda."
Administration officials suggested that the memo really only restated what was already policy - that detainees must be treated "humanely." But what was undeniable was that the president's executive order of Feb. 7, 2002, declared that Geneva's Article 3 did not apply to Al Qaeda or Taliban detainees, and the newly released memo, written by Deputy Defense Secretary Gordon England, said it does.
After the Pentagon released the memo, the White House confirmed that it had formally withdrawn part of the 2002 order and accepted that Article 3 of the Geneva Conventions now applies to Qaeda detainees. That article prohibits "humiliating and degrading treatment" of prisoners and requires trials "affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
"This is an important course correction, and there are political ramifications to it," said Scott Silliman, an expert on the law of war at Duke University. Top defense officials "never really clarified when Geneva applied and when it didn't," he said.
Richard Kohn, a military historian at the University of North Carolina, said the administration may have anticipated that it would have to adjust its policies, formed under immense pressure after the 2001 attacks.
"They were going to reach as far as possible to prosecute this war, and if they were forced to scale back, they'd scale back," Kohn said. "Almost from the beginning, the administration has had to back away and fuzz up the issues."
If there has been a retreat, it may in part reflect a change in the perceived threat from Al Qaeda since the disorienting days after 9/11. As months, then years, passed without a new attack in the United States, the toughest measures seemed steadily less justifiable.
"As time passed, and no more buildings were blowing up, it was no longer an emergency and the rules had to be renegotiated," said Dennis Showalter, professor of history at Colorado College.
In retrospect, all the contradictions that have emerged in the last four years were present in embryo in the 2002 presidential order.
The order began by noting that "our recent extensive discussions" had shown that deciding how Geneva rules would apply to Qaeda prisoners "involves complex legal questions." It said the conventions' protections did not apply to terrorist suspects - but also said "our values as a nation" nonetheless "call for us to treat detainees humanely, including those who are not legally entitled to such treatment."
In 2003, the administration decided that Article 3 would be applied to all prisoners captured in Iraq - even non- Iraqi members of Al Qaeda. But the May 2004 revelations of abuse of prisoners at Abu Ghraib showed that the policy had not always been followed, and in response, the Defense Department repeatedly whittled down the list of approved interrogation techniques.
In 2004, the Justice Department reversed course as well, formally withdrawing a 2002 opinion asserting that nothing short of treatment resulting in "organ failure" was banned as torture.
In late 2005, the administration was forced to accept legislation proposed by Senator John McCain, Republican of Arizona, to ban "cruel, inhuman or degrading treatment" of prisoners held by the United States anywhere in the world.
In the meantime, the Supreme Court was knocking down some of the administration's key assertions of presidential power in the battle against terror.
In Rasul v. Bush in 2004, the court ruled that U.S. courts had the authority to decide whether foreign terrorist suspects held at Guantánamo Bay were rightfully detained. And on June 29, in Hamdan v. Rumsfeld, the court rejected the administration's rules for military commissions set up to try Guantánamo detainees, saying it had failed to seek congressional approval and had fallen short of the standards set both by law and the Geneva Conventions.
It was the Hamdan ruling that prompted England's memo. "It is my understanding," he wrote, that all current Defense Department rules were already in compliance with Geneva's Article 3.
But England's wording suggested that after all the policy adjustment since 2002, he was not certain everyone was operating from the same playbook: "I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standard of Common Article 3."
England's uncertainty was not surprising, Silliman said. Mixed messages over exactly which rules applied where, and which Geneva protections were to be honored and which ignored, were at the root of prisoner abuse scandals from Guantánamo to Iraq to Afghanistan, he said.
"It's clear when you look at Abu Ghraib and everything else that there was a tremendous amount of confusion," Silliman said.
Even as legal experts parsed England's memo, confusion lingered.
The American Civil Liberties Union welcomed the memo as "a first big step," toward ending "four years of lawlessness" on detainee issues.
But it also noted that, in testimony Tuesday, other administration officials suggested that Congress simply adopt as law the proposed military commissions in exactly the form that critics say falls far short of Geneva's Article 3.
That skepticism was shared by Martin Lederman, a former Justice Department official now at Georgetown University's law school.
"The administration has fought tooth and nail for four years to say Common Article 3 does not apply to Al Qaeda," Lederman said. "Having lost that fight, I'm afraid they're now saying, 'Never mind, we've been in compliance with Article 3 all along.'"
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