Former Military Lawyer Judges Geneva Memo

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Retired Adm. John Hutson, a former judge advocate general in the Navy, talks with Renee Montagne about a memo directing the U.S. military to abide by Article Three of the Geneva Conventions in the treatment of detainees. Hutson is one of three retired officers who recently filed a brief on behalf of the Guantanamo detainees.

RENEE MONTAGNE, host:

We turn now to retired Admiral John Hutson, a former judge advocate general in the Navy. He is also one of three retired officers who recently filed a brief on behalf of the Guantanamo detainees. Admiral Hutson testifies today before the House Armed Services Committee. I asked him why it took so long for the Pentagon to issue a memo in which Deputy Defense Secretary Gordon England said detainees do have a right to legal protections under the Geneva Conventions.

Admiral JOHN HUTSON (President and Dean, Franklin Pierce Law Center; Former Judge Advocate General, United States Navy, Retired): Well, in February of 2002, the president of the United States in his capacity as commander in chief said that the Geneva Conventions do not apply, so that this is essentially a 180 degree turn-around by the Department of Defense, which is a very large organization and it takes a long time to turn it around 180 degrees.

MONTAGNE: Given that this has happened, what are the implications?

Adm. HUTSON: I think they are potentially dramatic. I mean, the Supreme Court has said, unequivocally, that Common Article Three of the Geneva Conventions applies, so in that sense, the Pentagon is simply following suit.

On the other hand, I think that there is potentially a very important symbolic aspect to Secretary England's memo, in which he concurs and acknowledges that the Supreme Court has said that it applies. And he is directing all the subordinate organizations to insure that they are complying with Common Article Three so that it is adopting the Supreme Court's position and trying to enforce it.

Now, you know, the proof's in the pudding. We'll see.

MONTAGNE: Well, do you expect the treatment of detainees to change? I mean, in what ways could, say, it be gotten around?

Adm. HUTSON: The administration has said for some time that, although the Geneva Conventions don't apply, we are going to comply with their requirements. And that's been words, but in fact, we have seen what we've seen. And the question is the accountability to which officers and others will be held when there are violations.

So, you know, there are a couple of ways to do this and one's the enthusiastic and the no kidding way, and the other is the kind of the wink-and-the-nod way. And I'm hopeful they'll take the former.

MONTAGNE: This memo by the deputy defense secretary...

Adm. HUTSON: Yes.

MONTAGNE: ...does seem to sort of avoid admitting that detainees have been maltreated.

Adm. HUTSON: You're absolutely right. In fact, it says to the contrary. And the language is sort of interesting, and it may just be bureaucratic, but it says that the Supreme Court has said that Common Article Three applies, and then it says it is my understanding that we are complying. But then, in the third paragraph, goes on to say let's make sure that we are. So that it's not specifically saying we do comply, but it's, you know, it's my understanding that we are. So there's some kind of funny language in it.

MONTAGNE: And does it make it clear to whom this directive actually applies? Is it just the Defense Department personnel? What about the CIA?

Adm. HUTSON: You know, this comes from the deputy secretary of defense. He only has authority over the Department of Defense, so that there are lots of people in, you know, the so-called other governmental agencies to whom this has no particular bearing because it's not coming from their boss, it's coming from somebody else's boss. So, yeah, there is that question that hangs out there with regard to CIA and others.

MONTAGNE: Thank you very much for joining us.

Adm. HUTSON: Thank you.

MONTAGNE: Admiral John Hutson is former judge advocate general for the Navy. He's currently dean of the Franklin Pierce Law Center in New Hampshire.

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