All The Judicial Guarantees Which Are Recognized As Indispensable By Civilized Peoples
According to the Financial Times [this and all subsequent links will open in a new window] Gordon England, the Deputy Secretary of Defense has issued a memo [PDF] requiring that “detainees” be treated in accordance with the Geneva conventions.
The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
“It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 and, therefore, actions by DoD personnel that comply with such issuances would comply with the standards of Common Article 3. … In addition, you will recall the President’s prior directive that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices, and procedures under your purview to ensure that they comply with the standards of Common Article 3.”
This is an apparent reversal of the American refusal to abide by the conventions in particular Article 3. Article 3 is common to all of the conventions it’s main provisions outlaw:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
England’s memo is a response to the US Supreme Court ruling in Hamdan v. Rumsfeld which struck down the “military commissions.” The court held that the commissions were repugnant to the convention, and American law including the UCMJ [Uniform Code of Military Justice.]
In Hamdan v. Rumsfeld the Court further rejected the Cheney Bush administration’s argument that Hamdan, a Guantanamo Bay detainee, was not entitled to Geneva Convention protections because he was not part of a regularly constituted uniformed enemy force. The court held that the Geneva Conventions apply to the war on terror.
However it is important to note that this policy only applies to detainees held in military custody. It does not apply to persons held prisoner outside of the military detention system, such as those held in CIA run prisons.
markfromirelandResources for those interested in learning further:
American Bar Association Report [PDF]
Council on Foreign Relations “High Court Reins in Administration” [included with some reluctance for the sake of completeness - mfi]
Council on Foreign Relations “A U.S. Shift on Detainees” [included with some reluctance for the sake of completeness - mfi]
Military Commissions - US Department of Defense
Military Commission Orders US Department of Defense
NYU Journal of Law and Liberty Symposium on Hamdan v. Rumsfeld [Good overview from a historical perspective and several points of view]
Yesterday the Senate Judiciary Committee began hearing testimony of this. The White House lawyers were beyond despicable. There is a commentary here:
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/11/AR2006071100953.html
Including this:
“The witnesses were even dismissive of the new Pentagon memo applying the Geneva Conventions to all detainees for the first time. “It doesn’t indicate a shift in policy,” Dell’Orto said.”
Things are coming to a crisis point. Hopefully we will make it through.
Comment by Dr. C. — July 12, 2006 @ 6:31 pm
Why does this strike me as too little too late? What happened, have they run out of prisoners?
Comment by Nur al-Cubicle — July 13, 2006 @ 8:28 am