A RETURN TO JUSTICE

With a major shove from the Supreme Court, the Bush administration has realized that the Geneva Conventions aren’t so “quaint” after all. In a reversal of policy, the Pentagon told all Defense personnel that they must comply with the decades-old international agreement on prisoners of war.

The administration is now working with Congress to develop a system to try the hundreds of detainees held at Guantanamo Bay and other prisons. The best way to do this is to adjust existing military judicial procedures to handle detainees from the war on terror rather than creating a new tribunal system.

In 2002, Alberto Gonzales, who is now the attorney general, authored a memo to the president calling some provisions of the Geneva Conventions “quaint” and not applicable to America’s war on terror, which includes the war in Iraq. An especially outmoded provision was the requirement that prisoners – which the administration calls enemy combatants – have access to at least minimal judicial proceedings.

The Supreme Court rejected the idea that enemy combatants could be held indefinitely without access to lawyers or judicial proceedings in June 2004 and the administration then set up a system of secret military tribunals for detainees. This June, the Supreme Court said the structure and proceedings of military tribunals at Guantanamo – where prisoners aren’t allowed to be present and evidence can be withheld from their lawyers – violate the Geneva Conventions and the Uniform Code of Military Justice, which govern the American military’s legal system.

As a result, the Pentagon recently sent a memo to military leaders saying all Defense personnel must comply with Article 3 of the Geneva Conventions, which requires humane treatment of prisoners and a minimum standard of judicial protections. While the current focus is on the judicial requirements, the White House strongly fought congressional efforts to ban the torture of detainees even after photos showed Iraqi prisoners being mistreated by American personnel at the Abu Ghraib prison in Baghdad.

It is now up to Congress to craft a system for trying detainees, many of whom have been held for more than four years and likely have little useful information to share. Using the current military courts-martial, which are governed by the Uniform Code of Military Justice, offers the best solution.

At a Senate Judiciary Committee hearing last week, Sen. Lindsay Graham, a Republican from North Carolina and a former military lawyer, told the Justice Department it should make changes to courts-martial procedures to allow some hearsay evidence and to make exceptions for classified information rather than insisting on tribunals. By working within the existing military justice system, he said “we can end up with a system we can all be proud of.”

The wrong solution, and the one favored by some members of the House of Representatives, is to rewrite laws to allow the administration’s system of secret tribunals that the Supreme Court just ruled were illegal.