U.S. Shifts Policy on Geneva Conventions

In this April 6, 2006, file photo reviewed by U.S. military officials, a guard looks on within the fenced-in grounds of the maximum security prison at Camp Delta, at the Guantanamo Bay U.S. Naval Base, Cuba. An investigation into three apparent suicides at the prison has found that other detainees may have helped the men hang themselves or were planning to kill themselves too, according to court papers filed late Friday, July 8, 2006, in Washington. (Brennan Linsley - AP)

"At a symbolic level, it is a huge moral triumph that the administration has acknowledged that it must, under the Supreme Court ruling, adhere to the Geneva Conventions," said David Remes, a lawyer who represents 17 Yemeni detainees at Guantanamo Bay. "The legal architecture of the war on terror was built on a foundation of unlimited and unaccountable presidential power, including the power to decide unilaterally whether, when and to whom to apply the Geneva Conventions."

The release of the England memo, first disclosed by the British newspaper the Financial Times, came as Congress began hearings responding to the June 29 Supreme Court ruling. The court essentially invited Congress to establish a system of justice for the detainees, and lawmakers plunged into debate yesterday over the level of access that such prisoners should have to lawyers, evidence and cross-examination of accusers.

At a Senate Judiciary Committee hearing yesterday, the administration urged Congress to pass a law allowing it to resume practices that deny to military detainees some of the key rights provided in courts-martial or civil courts. Administration officials are worried that without such practices, such as permitting certain hearsay evidence, it might be difficult to obtain convictions for some detainees.

"The court-martial procedures are wholly inappropriate for the current circumstances and would be infeasible for the trial of these alien enemy combatants," said Steven Bradbury, acting assistant attorney general in the Justice Department's Office of Legal Counsel.

Top Republican lawmakers said it is unlikely that they will accept the administration's position, predicting that Congress and the administration will find a middle ground between Bush's positions and the rights allowed in court-martial proceedings.

Committee Chairman Arlen Specter (R-Pa.) told Bradbury: "I doubt very much that Congress is going to be disposed to leave these issues to the Department of Defense." He said lawmakers will wrestle with "what is appropriate evidence, whether hearsay should be allowed" and what are detainees' appropriate "right to counsel, the right to classified information" being used against them.

Democrats were more direct and critical. "I find it hard to fathom that this administration is so incompetent that it needs kangaroo-court procedures to convince a tribunal of United States military officers that the 'worst of the worst' imprisoned at Guantanamo Bay should be held accountable" for crimes, said Sen. Patrick J. Leahy (Vt.), the committee's ranking Democrat. "We need to know why we're being asked to deviate from rules for courts-martial." Leahy described Bush's record on detainees as "five years, no trials, no convictions."

Bradbury and Daniel Dell'Orto, the Defense Department's principal deputy attorney general, repeatedly urged lawmakers to limit the rights of detainees captured in what the administration terms its war on terror. Dell'Orto said Congress should not require that enemy combatants be provided lawyers to challenge their imprisonment.

When Specter asked, "How much evidence should be presented to keep people detained in Guantanamo in enemy-combatant status?" Bradbury replied: "We think that it doesn't necessarily have to be a 'preponderance of the evidence' standard" but rather a "substantial evidence" standard.

U.S. officials said planned changes in policy would bring the CIA in line with the military, which has gone through wrenching internal and public debate since the Abu Ghraib prison scandal came to light in 2004. In contrast to the military, neither the CIA nor the administration has ever publicly acknowledged that detainees are being held.

Some officials said the CIA decision was firm; others described it as preliminary.

Just as the Pentagon issued guidance last weekend to employees on the Supreme Court decision, the CIA is expected to come up with its own clarifying guidance, reflecting the new decision. But there is resistance to the idea of bringing the CIA prisoners into public scrutiny.

A CIA spokesman declined to comment.

Staff writers Dana Priest and Robin Wright and researcher Julie Tate contributed to this report.