By Thomas E. Ricks
Washington Post Staff Writer
Wednesday, July 12, 2006; A05
The biggest effect of the Pentagon's acceptance of a recent Supreme Court ruling that requires it to abide by the Geneva Conventions on the treatment of prisoners is likely to be not at the Guantanamo Bay prison camp or in U.S. courtrooms but on the battlefields of Iraq and Afghanistan, military lawyers and other experts said yesterday.
Experts said the justices' ruling removes much of the ambiguity about what sort of protections detained Iraqis, Afghans and foreign fighters enjoy and what rules apply to the actions of U.S. troops.
"It's a significant change in my view because the troops on the ground in Iraq have never been sure it was a requirement" to observe the Geneva rules, said Gary D. Solis, a former Marine Corps infantry commander who is an expert on the law of war. "It sets the philosophic tone for our soldiers and Marines."
For years, these experts said, U.S. military personnel in Iraq and Afghanistan were operating under guidelines that were not clear. As prisoners were taken in Afghanistan late in 2001 and early in 2002, for example, Defense Secretary Donald H. Rumsfeld said that the United States "for the most part" was treating the prisoners "in a manner that is reasonably consistent with the Geneva Convention." But he said that it was not required to do so, because the detainees are "unlawful combatants" who "do not have any rights under the Geneva Convention."
This murkiness has been cited by some critics of the administration's operations in Iraq as contributing to a culture of abuse that led to inhumane treatment of prisoners at Abu Ghraib prison and other sites.
As a result, some lawyers with expertise in military affairs said, they believe military leaders would be reassured by a clarification of prisoners' rights in part because it is a reversion to U.S. military tradition. "I think commanders in the field will see it positively -- they see the value of complying with the law of war," said Col. David Wallace, a West Point law professor. "It's not seen as an impediment to mission performance."
"I think it will be welcomed," agreed Tom Malinowski, the Washington director for Human Rights Watch. "It provides greater clarity and returns the military to a standard every soldier, sailor and Marine trains on."
The decision to abide by the Geneva Conventions is also likely to raise the stature of military lawyers, or JAGs (judge advocates general), in the Pentagon and in the field. A senior military lawyer said that soon after the Supreme Court's decision, meetings began at the Pentagon on how to implement it. Partly because many in the military had misgivings all along, the lawyer noted, "there's a little bit of 'we told you so' " in those meetings with senior Pentagon civilians.
Now, unlike in the past, a lawyer telling a commander that an action might violate the Geneva Conventions will be like a flashing red light of warning. "I think it does tend to enhance the position of judge advocates, most of whom at senior levels have been saying all along that Geneva should apply," Solis said.
The new legal clarity also will provide better guidelines for senior commanders, helping them to avoid embarrassing reversals. For example, in September 2003, Army Lt. Gen. Ricardo S. Sanchez, the top U.S. commander on the ground in Iraq, approved 29 interrogation techniques, but in doing so he noted that some allies believed some of the methods were inconsistent with the Geneva Conventions. A month later, he was told by Central Command, the U.S. military headquarters for the region, that 10 of the 29 techniques were "unacceptably aggressive," according to a subsequent Pentagon inquiry.
Also, young soldiers tended to defer to CIA interrogators, whom they saw as professionals, and who also did not feel constrained by the Geneva Conventions.
The Bush administration says that having to observe the Geneva Conventions in handling detainees is no problem, because the spirit of the conventions' protections has been observed all along. "It is not really a reversal of policy," White House spokesman Tony Snow said yesterday.
The Geneva Conventions require humane treatment, and "Defense Department policy has always been humane treatment," said Army Lt. Col. Mark Ballesteros, a military spokesman.
Indeed, in the short term, there probably will be few changes at the U.S. prison camp at Guantanamo Bay, Cuba, for suspected members of al-Qaeda and their Taliban allies, predicted a senior military lawyer, who spoke on the condition of anonymity. That is primarily because some practices that clearly would violate the conventions' ban on "humiliating and degrading treatment," such as putting underwear on detainees' heads, were abandoned long ago, mainly because they were found to be ineffective, the lawyer said.
But, the lawyer added, the lack of definition in the conventions could make the new policy a rich area of litigation for defense lawyers, especially in a cross-cultural environment. For example, a Muslim prisoner might argue that in his culture being interrogated by a foreign female is an outrage on his personal dignity, and therefore inhumane.
"I think we've got to go back and start from scratch," in terms of defining how to apply the Geneva Conventions to detainees, said Scott L. Silliman, a former military lawyer who teaches law at Duke University. No matter how the Bush administration tried to present it, he said, "it's definitely a reversal of policy."
Malinowski said he thought the move would reassure foreign allies that have expressed unease about the United States taking the position that it might occasionally have to operate outside the accepted procedures of the Geneva Conventions.