Gonzales questions relevance of Geneva protections, defends Gitmo policies
Jeannie Shawl at 1:55 PM ET
[JURIST] US Attorney General Alberto Gonzales [official profile] insisted Tuesday that US treatment of detainees is consistent with the Geneva Conventions [ICRC materials], but questioned the relevance of some Geneva provisions in the context of "this new kind of war, against this new kind of enemy." In an interview [BBC report] with BBC News during an official visit to London [JURIST report], Gonzales wondered whether Convention requirements that detainees be given commissary privileges and a monthly allowance made sense and also questioned whether embarrassing or insulting a detainee should constitute cruel, inhumane or degrading treatment. This is not the first time that Gonzales has questioned the relevance of the Geneva Conventions to the war on terror. In a 2002 memo [text; JURIST report] written while he was White House counsel, Gonzales suggested that the post-September 11 situation and the war against terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."
Earlier Tuesday, Gonzales publicly defended US policies on torture, saying that the US respects the rights of detainees and does not knowingly practice extraordinary rendition [JURIST news archive] by sending detainees to countries where it is likely they will be tortured. In a speech [text] at London's International Institute for Strategic Studies, Gonzales said:
The United States abhors torture and categorically rejects its use, as a matter of policy, as a matter of international obligations, and as a matter of US law. Likewise, US law forbids cruel, inhuman and degrading treatment of detainees as defined by U.S. obligations under the Convention Against Torture, whether in the United States or abroad, whether at the hands of military or civilian personnel. When violations do occur, as they have, we investigate any credible allegation - and those found to have committed infractions are disciplined. Unlike our enemies who torture and decapitate innocent human beings to make their point, we are committed to rooting out and denouncing the mistreatment of human beings - even when it is committed by our soldiers against enemy combatants. The virtue of the rule of law is not that it eliminates all human flaws; rather, laws expose flaws, and address them justly.Gonzales also defended conditions [Reuters report] at Guantanamo Bay [JURIST news archive], saying that detainees received "unprecedented legal protection:"
Our Congress recently passed and the President signed the Detainee Treatment Act, which included the well-known McCain Amendment. Contrary to press accounts, however, the McCain Amendment did not prohibit torture. Our federal criminal laws have long done that. Instead, the McCain Amendment codified in U.S. law the prohibition against cruel, inhuman, and degrading treatment contained in the Convention Against Torture, making clear that the prohibition applies to the treatment of all detainees under U.S. control anywhere in the world.
In the context of renditions - another matter that has raised particular concern in the UK and Europe - US policy is also clear. We do not transport anyone to a country if we believe it more likely than not that the individual will be tortured; and we seek assurances, where appropriate, that transferred persons will not be tortured. We do not use the airports or air space of any country in Europe or anywhere in the world for the purpose of transporting a detainee to a country where he will be tortured.
the United States Congress and the President have recognized the unusual nature of this conflict and, the wartime context notwithstanding, have provided additional and unprecedented legal protections to Guantanamo detainees - protections that seem to have received scant attention abroad. First, each detainee is provided not just the traditional assessment of his status by commanders in the field. He is also afforded a subsequent formal hearing before a separate, three member military tribunal to determine whether he is properly being detained as an enemy combatant. Then, if the detainee objects to the tribunal's conclusion, he may appeal to a civilian federal Court of Appeals and thereafter to the United States Supreme Court. In addition, every detainee is afforded an annual administrative review to determine whether he should be released - a process very much like a prison parole hearing.In a report [PDF text] released last month, the UN called for the Guantanamo prison to be closed [JURIST report], a sentiment since echoed by several European countries [JURIST report]. AP has more.
We are aware of no other nation in history that has afforded procedural protections like these to enemy combatants - including allowing access to civilian courts for those captured on the battlefield. In point of fact, more than 265 detainees have already been transferred out of Guantanamo Bay. Unfortunately, despite assurances from those released, the Department of Defense reports that at least 15 have returned to the fight and been recaptured or killed on the battlefield.
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