Prisoners held in US military custody around the world will receive some protection under the Geneva convention, the Pentagon has ruled, in a move that could affect prisoners held in secret Central Intelligence Agency prisons.
Responding to news broken on FT.com, the White House on Tuesday confirmed that Gordon England, deputy defence secretary, sent a memorandum to senior defence officials and military officers last week, telling them that Common article III of the Geneva Convention – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.
The White House insisted that the move did not represent a change in policy. But the July 7 Pentagon memo stood in stark contrast to a February 2002 memo in which President George W. Bush said: “Common article III of Geneva does not apply to either al-Qaeda or Taliban detainees.”
The policy U-turn comes on the heels of the Supreme Court ruling last month that the military commissions Mr Bush created to try prisoners at Guantánamo Bay contravened both US law and the Geneva convention.
The International Committee of the Red Cross on Tuesday welcomed the “significant decision as a step towards bringing all US detentions into compliance with international law”.
Edward Kennedy, the Massachusetts Democrat who has been one of the fiercest critics of US policies in the war on terror, said: “This dramatic policy reversal, assuming it’s implemented in good faith, is the first step to restoring America as a beacon for human rights and our ability to insist that our own soldiers are treated humanely.”
The move could increase pressure on the administration to rule that detainees being held by the CIA in secret prisoners – such as Khaled Sheikh Mohammed, the alleged mastermind of the September 11 2001 attacks – should receive Geneva protections.
Steven Bradbury, acting assistant attorney-general, on Tuesday told a Congressional committee that the Supreme Court had ruled that Common article III applied to the conflict with al-Qaeda, suggesting that it was not limited to military operations. The CIA declined to comment.
“Incommunicado detention clearly violates this standard,” said Jennifer Daskal, advocacy director at Human Rights Watch. “At a minimum, the administration can no longer justify its continuing denial of ICRC’s repeated request for access.”
Several Republican senators on Tuesday expressed reservations that the court decision had given Geneva protections to suspected al-Qaeda members, saying Congress should clarify which rights prisoners should receive.
“Congress should define Geneva convention protections that are afforded to al-Qaeda and that a blanket application of Common article III in terms of how you try or interrogate terrorists is inappropriate,” said Lindsey Graham, a South Carolina senator. “We need to rein in the courts decision.”
But John McCain, the Arizona senator who last year successfully forced the White House to accept an anti-torture amendment, said Congress did not have to make any changes with regard to Common article III to satisfy the Supreme Court.
“What we did on the torture amendment was sufficient to take care of the concerns that the court had about [Common] article III,” said Mr McCain. “I don’t think we have to act. I think we just have to set up the tribunals.”
Mr McCain added that his amendment would also ban CIA employees from abusing prisoners in their custody.
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