The Bush Administration suffered a crushing defeat this week … according to the mainstream media. Front pages across the nation reported that the president “bowed” to the wishes of the Supreme Court and “reversed” his long-standing policy for handling military detainees, including those held in Guantanamo.
Television commentator Bill Press described this “new policy” as a “stunning reversal,” while the New York Times insisted it was “a victory for those within the administration who argued that the United States’ refusal to extend Geneva protections to Qaeda prisoners was harming the country’s standing abroad.”
The media reports rely on a July 7 memo issued by Deputy Defense Secretary Gordon England in response to the recent Supreme Court’s Hamdan decision. In this case, the high court declared that the military tribunals the administration wanted to use to try detainees captured during the war on terror are unlawful and not in compliance with the 1949 Geneva Conventions.
But despite the fevered “reports” emanating from the mainstream pack, England’s memo doesn’t read like an Administration reversal of policy. Instead it seems merely to summarize the court’s ruling.
The two-page memo begins: “The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda.” England further notes: “The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.” Common Article 3 requires the humane treatment of detainees.
In the next paragraph England notes that existing Defense Department (DoD) practices are already in alignment with the Hamdan decision. “It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, executive orders, and doctrine comply with the standards of Common Article 3 and, therefore, actions by DoD personnel that comply with such issuances would comply with the standards of Common Article 3.” Also notable is England’s reference in the memo to a prior presidential directive that “the United States Armed Forces shall continue to treat detainees humanely.”
The presidential directive was issued four years ago. So the fact of the matter is that the Administration has mandated respect for the standards in Common Article 3 for years. Aside from the never-implemented tribunal procedures rejected by the court, the DoD was already operating in full compliance with the Hamdan decision. And yet, this “stunning reversal” is splashed over the front page of every newspaper that has an axe to grind with the administration’s policies in the war on terror.
Indeed, nowhere in the DoD memo is there any mention of a new policy. There is not even any indication that military detainees will be afforded any different treatment than they have been in the past.
But these points seem to be lost on the mainstream press.
The Washington Post’s contention that “The Pentagon announced yesterday that it has called on military officials to adhere to the conventions in dealing with al-Qaeda detainees” ignores the basic text of the DoD memo. It makes no new announcement, but rather reiterates already existing policies and encourages DoD personnel to ensure their continued compliance with these standards.
It might be fairer to say that the July 7 memo represents a philosophical change in emphasis. Without outlining a new policy for treating detainees, England did further emphasize compliance with basic human rights standards. Will this in effect change procedures? That is a question that has yet to be answered.
In the wake of Hamdan, Congress must provide the answer. Both chambers are now holding hearings on this subject. The administration is urging Congress to, in effect, legislatively ratify its previous position — an option that the Supreme Court left open.
It’s not clear whether Congress will have time to act before its month-long August recess, but already backers of the administration policy are agitating for a decisive congressional response. “With the Hamdan decision, it’s now up to Congress and the President to collaborate, and to create military commissions for al Qaeda terrorists that are consistent with American values and in our national security interest. And we will do that,” said Republican Sen. John Conryn of Texas.
“But let me be clear: the American people will not look favorably on this Congress if it gives al Qaeda terrorists more generous protections and procedures than criminal defendants in U.S. courts and our own military personnel.”
True … the American people would no doubt cringe at such a prospect. But would the mainstream press?