thedrifter
07-12-06, 07:04 AM
Analysis
Revision may bring clarity to battlefield
By Thomas E. Ricks
Washington Post
WASHINGTON - The biggest effect of the Pentagon's acceptance of a recent Supreme Court ruling that requires it to abide by the Geneva Convention on the treatment of prisoners will probably not be at the Guantánamo Bay prison camp or in U.S. courtrooms but on the battlefields of Iraq and Afghanistan, military attorneys and other experts said Tuesday.
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 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 Rumsfeld said that while the United States ``for the most part'' was treating the prisoners ``in a manner that is reasonably consistent with the Geneva Convention,'' 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 Ghurayb prison and other sites.
As a result, some attorneys with expertise in military affairs said they believe that military leaders would be reassured by a clarification of prisoners' rights in part because it is a return 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 Convention also is likely to raise the stature of military attorneys, or JAGs, for judge advocate generals, in the Pentagon and in the field. A senior military attorney said that soon after the Supreme Court decision, meetings began at the Pentagon on how to implement it. Partly because many in the military had misgivings all along, the attorney noted, ``There's a little bit of `we told you so' '' in those meetings with senior Pentagon civilians.
Now, an attorney telling a commander that an action might violate the Geneva Convention 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 Geneva Convention requires humane treatment, and ``Defense Department policy has always been humane treatment,'' said Army Lt. Col. Mark Ballesteros, a military information officer.
In the short term, there will probably be few changes at the U.S. prison camp at Guantánamo Bay, Cuba, for suspected members of Al-Qaida and their Taliban allies, senior military attorneys predicted. That is primarily because some practices that clearly would violate the convention's 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 attorney said.
``I think we've got to go back and start from scratch,'' in terms of defining how to apply the Geneva Convention to detainees, said Scott Silliman, a former military attorney 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.''
Ellie
Revision may bring clarity to battlefield
By Thomas E. Ricks
Washington Post
WASHINGTON - The biggest effect of the Pentagon's acceptance of a recent Supreme Court ruling that requires it to abide by the Geneva Convention on the treatment of prisoners will probably not be at the Guantánamo Bay prison camp or in U.S. courtrooms but on the battlefields of Iraq and Afghanistan, military attorneys and other experts said Tuesday.
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 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 Rumsfeld said that while the United States ``for the most part'' was treating the prisoners ``in a manner that is reasonably consistent with the Geneva Convention,'' 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 Ghurayb prison and other sites.
As a result, some attorneys with expertise in military affairs said they believe that military leaders would be reassured by a clarification of prisoners' rights in part because it is a return 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 Convention also is likely to raise the stature of military attorneys, or JAGs, for judge advocate generals, in the Pentagon and in the field. A senior military attorney said that soon after the Supreme Court decision, meetings began at the Pentagon on how to implement it. Partly because many in the military had misgivings all along, the attorney noted, ``There's a little bit of `we told you so' '' in those meetings with senior Pentagon civilians.
Now, an attorney telling a commander that an action might violate the Geneva Convention 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 Geneva Convention requires humane treatment, and ``Defense Department policy has always been humane treatment,'' said Army Lt. Col. Mark Ballesteros, a military information officer.
In the short term, there will probably be few changes at the U.S. prison camp at Guantánamo Bay, Cuba, for suspected members of Al-Qaida and their Taliban allies, senior military attorneys predicted. That is primarily because some practices that clearly would violate the convention's 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 attorney said.
``I think we've got to go back and start from scratch,'' in terms of defining how to apply the Geneva Convention to detainees, said Scott Silliman, a former military attorney 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.''
Ellie