White House Shifts Policy on Detainee Tribunals

White House spokesman Tony Snow announces that Geneva Conventions apply to all detainees held by the U.S. military, including those at Guantanamo Bay. The shift appears to acknowledge the Supreme Court's view that Bush administration strategy on military tribunals is in violation of U.S. and international law. Slate legal analyst Dahlia Lithwick talks with Madeleine Brand.

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ALEX CHADWICK, host:

This is DAY TO DAY, coming up we meet an artist who takes bulletproof Kevlar, and turns it into comforters for the bed. I'm Alex Chadwick.

MADELEINE BRAND host:

And I'm Madeleine Brand.

In a major change of policy, the Bush administration said today, that all detainees in U.S. Military custody, including those held at Guantanamo Bay, are entitled to protections under the Geneva Conventions. The new Pentagon policy is in response to the recent Supreme Court decision that struck down the administrations approach to military tribunals.

Joining us to discuss this news, is Dahlia Lithwick, she's legal analyst for the online magazine Slate, and for us here at DAY TO DAY. And Dahlia, first give us some background, what was the policy on detainees before - regarding the Geneva Conventions.

Ms. DAHLIA LITHWICK (Legal Analyst): Well Madeleine, you'll remember in 2002 the Bush administration announced that the Geneva Convention simply do not apply to al-Qaida because "They were illegal combatants, they didn't wear uniforms, they didn't represent a nation state." And at the time, Alberto Gonzales, now the Attorney General, dismissed them as "quaint" - they were just irrelevant to this new kind of war.

So, even though the administration said, look we're voluntarily complying with the basic rights guaranteed in Geneva, they really made a point of saying Geneva does not apply to these people. And in fact, they set up these military tribunals - these commissions at Guantanamo Bay - precisely because they wanted to create some new form of law, that didn't necessarily offer all the protections that would have been guaranteed under the Geneva Convention.

BRAND: Now, the White House says that all along, it's been treating it's detainees humanly and fairly. And today, the White House spokesman Tony Snow, downplayed the shift in policy as not necessarily a major change, but is it?

Ms. LITHWICK: It was interesting Madeleine, Tony Snow today said "This is not really a reversal of policy" but in fact it's a sea change. The truth is, if the administration had agreed all along to be bound by the Geneva Conventions, we wouldn't be having many of these arguments in the first place. So, I don't think it's fair to say this is a tiny tweak, this is a major concession that they have very, very hard-fought, but lost.

The point that, as a matter of law, Geneva does not apply to these detainees. And I think that this is a big concession, it needs to be recognized as that.

BRAND: And this is in direct response to the Supreme Court decision?

Ms. LITHWICK: Well that's right. It's important to understand, that two weeks ago on the last day of the Supreme Court term, the Supreme Court, by a 5-3 decision, handed down an absolute unequivocal ruling on this exact point, in Hamdan v. Rumsfeld. And the court said, not only are we going strike down these military commissions, that Bush had sort of invented to try the detainees at Guantanomo, but expressly said Article Three of the Geneva Conventions. It's called the Common Article 3, because it's in all of the conventions.

Article 3 of the Geneva Conventions does apply to these detainees, and that the detainees can mount challenges in Federal Court. So it was a very, very clear renunciation of the Bush tact that said, they don't need to abide by Geneva. And in response to that, I think we had today's announcement.

BRAND: And what are the implications of today's announcement, because simultaneously, we've got hearings going on on Capitol Hill, dealing with this very issue.

Ms. LITHWICK: That's right, I mean we know at the most basic sense, that Article three of the Geneva Conventions prohibits torture. We are less clear on the sort of procedural rights - Geneva guarantees, sort of, basic legal rights... The quote in Geneva - and it's a little fuzzy, is - these are rights that are "Judicial guarantees recognized as indispensable by civilized people".

So what does that mean? We're not clear, but it probably means that the objection that the Supreme Court had in Hamdan, to some of the aspects of these military tribunals. For instance, defendants could be barred from attending their own trial, evidence obtained by torture could be used against them. Those kind of things probably exceed that notion of what are sort of basic judicial guarantees.

So, certainly Congress is now going to fight that out, you know, what are the parameters of fair trials under Geneva. But at least the question of, can Congress sort of write Geneva out of the picture, is now off the table. The Bush administration has essentially said, don't bother writing Geneva out of the equation, because were willing to abide by it now.

BRAND: But, who doesn't this cover?

Ms. LITHWICK: Certainly we know that this policy now applies to all detainees that are held in U.S. Military custody. It will not apply to prisoners who are outside of the military prison system, and that may include people like Khalid Shiekh Mohammed - people who are either at alleged black sites, CIA prisons -who've been rendered elsewhere for questioning, or alleged CIA secret prisons around the world.

BRAND: Opinion and analysis from Dahlia Lithwick, she covers the courts from the online magazine Slate, and for us here at DAY TO DAY. Thank you Dahlia.

Ms. LITHWICK: My pleasure.

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BRAND: Stay with us, there is a lot more ahead on DAY TO DAY from NPR News.

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