The 2nd in a series.

Well, well.

Just off the wires; (do they still have wires?)

As reported in the NY Times:

In Big Shift, U.S. to Follow Geneva Treaty for Detainees

In a sweeping change of policy, the Pentagon has decided that it will treat all detainees in compliance with the minimum standards spelled out in the Geneva conventions, a senior defense official said today.

The new policy comes on the heels of a Supreme Court ruling last month invalidating a system of military tribunals the Pentagon had created to try suspected terrorists, and just before Congress takes up the question of a replacement system in a Senate Judiciary Committee hearing today.

As part of its decision, the court found that a key provision of the Geneva conventions, known as Common Article 3, did apply to terror suspects, contradicting the position taken by the Bush administration.

The Pentagon memo allowing detainees the protections of Article 3 was first reported today by The Financial Times.

Mighty interesting. But please, don't even begin to think this battle is won.
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Here's the Wa Po on the same development:

U.S. Will Give Detainees Geneva Rights

The Bush administration said Tuesday that all detainees held at Guantanamo Bay, Cuba, and in U.S. military custody everywhere are entitled to protections under the Geneva Conventions.

White House spokesman Tony Snow said the policy, outlined in a new Defense Department memo, reflects the recent 5-3 Supreme Court decision blocking military tribunals set up by President Bush. That decision struck down the tribunals because they did not obey international law and had not been authorized by Congress.

The policy, described in a memo by Deputy Defense Secretary Gordon England, appears to reverse the administration's earlier insistence that the detainees are not prisoners of war and thus subject to the Geneva protections.

I suspect that the impetus for this came from the highest echelons of the military; they are the ones, after all, in a post-Hamdan world, who, by carrying out the policies of their Commander/King-in Chief, could be said to have committed war crimes, according to the Geneva conventions. And there was always considerable resistance to the administration's views as to the quaintness of the Geneva conventions. As the NYTimes points out:

Unlike four years ago, when the Bush administration formulated its plans for military commissions at Guantánamo Bay, Cuba, the debate now seems certain to include the views of the military’s most senior uniformed lawyers, whose objections were brushed aside earlier.

John D. Hutson, a retired rear admiral who was the top uniformed lawyer in the Navy until 2000, is one of a number of retired senior military lawyers who have filed briefs challenging the administration’s legal approach.

"We’re at a crossroads now," Admiral Hutson said. "We can finally get on the right side of the law and have a system that will pass Supreme Court and international scrutiny."

And from the perspective of our Rumsfeldian DOD, compliance probably seems a good way to undercut potential legal initiatives by a battery of committed lawyers, civilian and military, on behalf of their detainee clients.

So, the administration runs up the white flag, boasts of compliance with a Supreme Court decision, and, I suspect, waits to fight another day.

The worm in the apple, and you did know there was going to be a worm in that apple, didn't you - here's the Wa Po on Tony Snow, presenting the new policy at the gaggle:

Snow insisted that all U.S. detainees have been treated humanely. Still, he said, "We want to get it right."

"It's not really a reversal of policy," Snow asserted, calling the Supreme Court decision "complex."

edit

Snow said efforts to spell out more clearly the rights of detainees does not change the president's determination to work with Congress to enable the administration to proceed with the military tribunals, or commissions. The goal is "to find a way to properly do this in a way consistent with national security," Snow said.

Snow said that the instruction manuals used by the Department of Defense already comply with the humane-treatment provisions of Article 3 of the Geneva Conventions. They are currently being updated to reflect legislation passed by Congress and sponsored by Sen. John McCain, R-Ariz., to more expressly rule out torture.

"The administration intends to work with Congress," Snow said.

"We want to fulfill the mandates of justice, making sure we find a way properly to try people who have been plucked off the battlefields who are not combatants in the traditional sense," he said.

"The Supreme Court pretty much said it's over to you guys (the administration and Congress) to figure out how to do this. And that is where this is headed.

Although Snow's statements are drenched in mendacity, they have the virtue of giving us some idea of where the administration will focus its efforts. They won't aim their big guns directly at the court; someone has probably explained to them that shrieks of dismay at judicial overreach ain't gonna work this time; as Publius points out here:

It’s critical to understand what the Court did not do — it did not say "this is unconstitutional and therefore nothing in the legislative process can fix it." What it said was that the President has to follow the existing procedure, or create a new procedure. In doing so, it shifted everything back to the political branches (which is why all the knee-jerk cries of judicial activism are so unwarranted here). In this sense, the decision was, as Balkin noted, "democracy-forcing."

The battle will come over what kind of legislation will be enacted to conform administration policies with the Hamdan decision, and whether it is the President who will yield the crackpot ideas about presidential power in wartime forged by his Justice Department appointees, or congress who will yield the Common Article 3 of the Geneva Conventions to a power-mad failed presidency.

More on what I mean about Tony Snow's mendacity, more on Article 3, more on all manner of other interesting information in subsequent posts in this series.