By Charles Babington and Michael Abramowitz
Washington Post Staff Writers
Wednesday, July 12, 2006; A01
The Bush administration has agreed to apply the Geneva Conventions to all terrorism suspects in U.S. custody, bowing to the Supreme Court's recent rejection of policies that have imprisoned hundreds for years without trials.
The Pentagon announced yesterday that it has called on military officials to adhere to the conventions in dealing with al-Qaeda detainees. The administration also has decided that even prisoners held by the CIA in secret prisons abroad must be treated in accordance with international standards, an interpretation that would prohibit prisoners from being subjected to harsh treatment in interrogations, several U.S. officials said.
The developments underscored how the administration has been forced to retreat from its long-standing position that President Bush be given extensive leeway to determine how to interrogate and prosecute terrorism suspects captured in Iraq, in Afghanistan and elsewhere. Until recently, the White House and Defense Department have pursued such anti-terrorism policies with little interference from Congress and the courts, but that has begun to change.
Since 2002, the administration has contended that the Geneva Conventions would be respected as a matter of policy but that they did not apply by law to terrorism suspects held at Guantanamo Bay, Cuba, or in U.S. military custody elsewhere. Administration officials have voiced concern that the conventions are too vague and could expose the military to second-guessing about appropriate treatment.
But the Supreme Court rejected that view in a 5 to 3 decision last month, ruling that a Yemeni detainee at Guantanamo Bay could not be tried by a special military commission established by the Bush administration. The court held that the commissions violate U.S. law and the Geneva Conventions.
More than 400 such detainees are being held at Guantanamo Bay. None has been brought to trial, and some say they are innocent civilians mistakenly swept up in U.S. military raids.
Administration officials indicated that they had little choice but to act in the aftermath of that Supreme Court ruling. They disputed the suggestion that the new Pentagon policy represents significant change, because the administration already said that it treats detainees humanely.
"We strongly believe that terrorists picked up off the battlefield -- who don't represent a nation, revel in killing the innocent, and refuse to wear uniforms -- do not qualify for protections under Geneva," White House counselor Dan Bartlett said. "Five members of the Supreme Court disagreed. As the president said, we will comply with the ruling."
The new Pentagon policy -- detailed in a July 7 memo from Deputy Defense Secretary Gordon England -- called on defense officials to ensure that military personnel adhere to Common Article 3 of the Geneva Conventions, which provides a base-line level of protections for all terrorism suspects picked up on the battlefield.
The practical impact of the policy is uncertain. Legislation approved last year over Bush's objections bars the use of cruel, inhumane or degrading treatment against detainees, approximating what is in the Geneva Conventions. Some military lawyers, however, said they think the memo will remove a certain ambiguity about what military interrogators may do in the name of extracting information.
Many involved in the debate, especially those representing detainees and military lawyers who have fought the administration's policy, see symbolic significance in the new order, coming as it did after five years of intense battling within the administration over the applicability of the Geneva Conventions.
Bush declared in the months after the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon that al-Qaeda members were not entitled to the formal protections of the Geneva Conventions, siding with White House and Defense Department lawyers over objections from the State Department. But he said the prisoners would be treated humanely.
"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.