The Bush administration today engineered a flipflop in the war on terror, thereby demonstrating that a president who would prefer to act unfettered nevertheless must bow at times to political and constitutional constraints.
Until today, the Bush team was adamantly against the idea of giving basic legal rights to detainees in U.S. custody and protecting them from inhumane treatment, as required by the Geneva Conventions. But now the Bush team says it is for Geneva. The news broke today that a Pentagon memo, citing the relevent provisions of the 1949 international accords, was circulated last Friday.
What's most instructive is the timing: The administration has taken this step just two weeks after the U.S. Supreme Court decreed that Bush's unilateral and secret military tribunal process violated U.S. and international law. And this sudden bow to the Geneva accords comes on the eve of three congressional committee hearings aimed at urging the administration to accept Geneva; most tellingly, these hearings will host a phalanx of retired military lawyers who see the administration's past behavior as lawless (as retired rear admiral and Navy attorney John Hutson told the New York Times this morning, "We can finally get on the right side of the law and have a system that will pass Supreme Court and international scrutiny").
On the issue of timing, there's much more. This administration flipflop -- it was against Geneva before it was for it -- comes on the eve of Bush's upcoming trip to a G8 summit, where many of his allies have long been critical of the treatment of detainees at Guantanamo.
And lastly, reports indicate that the Pentagon memo was ordered by general counsel William Haynes, who has long been tapped by Bush to be a federal judge, but whose nomination has stalled because of ongoing questions about his key role in developing controversial interrogation methods. (A letter from 20 retired military officers charges that Haynes played a role in adopting policies "that compromised military values, ignored federal and international law, and damaged America's reputation and world leadership.") Haynes' decree about Geneva conveniently arrives on the eve of his latest confirmation hearing on Capitol Hill.
In other words, this move by the administration is a frank acknowledgement that it can no longer afford to act as it sees fit in the war on terror. Political, legal, constitutional, and international realities have intruded. This decision can also be read as a victory of sorts for Secretary of State Condoleezza Rice and her people, who, thinking pragmatically, have been viewing the Bush policy in Guantanamo as a propaganda boon for the anti-American forces worldwide. And that means the memo is a setback for the Dick Cheney faction (helmed by indispensible Cheney aide David Addington), which didn't want Congress or the international lawyers or the military JAG lawyers to have any role in detainee policy.
Meanwhile, politicians on both sides of the aisle are probably relieved to hear about the memo. Republicans in recent days have been split about whether to basically rewrite the U.S. Code of Military Justice and thereby legalize Bush's secret tribunals; or whether they should write legislation that would curb their president and thus carry out what the high court decreed. Democrats, meanwhile, catch a break on this one. Now they won't have to worry that a Democratic message of "obey Geneva" would be demonized by the GOP -- in the runup to the '06 elections -- as national security weakness.
Nevertheless, a note of caution is in order. The Department of Defense memo says that the Geneva accords will cover all detainees in U.S. military custody (“You will ensure that all DOD personnel adhere to these standards”) -- but it doesn't address the issue of detainees who may be outside military custody, but under intelligence agency control in those less-than-secret "black sites," the Eastern European prisons.
Nor does the memo guarantee that military interrogators would find ways to circumvent the Geneva rules, or interpret them in the broadest possible manner; as Steven Bradbury, acting assistant attorney general of the Justice Department’s Office of Legal Counsel, contended in a Senate hearing today, one key Geneva provision -- that detainees should be treated in a manner "recognized as indispensable by civilized people” -- could be read as ambiguous.
If the Bush team goes looking for loopholes, then its flipflop on Geneva may turn out to be nothing more than a rhetorical concession. Otherwise known as damage control.