CounterVortex

This is the surest sign yet that the Bush boys have been humbled. In addition to the unfavorable Supreme Court decision on the Guantanamo detainees, this July 11 AP clip notes some of the political considerations behind the decision to honor the Geneva Conventions:

WASHINGTON — 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.

The announcement comes after Senate Majority Leader Bill Frist said Monday the Senate is unlikely to take up legislation addressing the legal rights of suspected terrorists until after the August recess.

That would push the Guantanamo issue squarely into the election season.

Frist said legislative options are being discussed among Republicans, Democrats and the Bush administration. “We will act legislatively,” he said.

Hearings are planned in the Senate and the House beginning this week.

A recent Supreme Court decision has forced Congress to pass legislation dictating how suspected terrorists should be prosecuted. The high court ruled that President George W. Bush’s plan to try detainees captured in the war on terror through military tribunals violated U.S. and international law.

The New York Times notes July 13 that rights organizations hope to make good while the administration is on the defensive:

WASHINGTON, July 12 — Human rights organizations that have succeeded in changing the legal landscape for detainees at Guantánamo Bay, Cuba, say they are now pursuing the possibility of bringing lawsuits on behalf of some of the terrorism suspects held in secret C.I.A. jails throughout the world.

The lawyers say they believe that what was once was a remote possibility — challenging the detentions in the secret C.I.A. prison system in federal court — has been greatly enhanced by last week’s Supreme Court ruling and the administration’s response. The court appeared to say that the minimum rights of due process of the Geneva Conventions apply to all detainees, and on Tuesday the administration, shifting course, announced that was now official policy.

Michael Ratner, the director of the Center for Constitutional Rights, said Wednesday that his group was actively “investigating the possibility of bringing a case on behalf of a secret detainee through a family member.”

Mr. Ratner, whose New York-based group coordinated hundreds of legal challenges by Guantánamo Bay detainees, said lawyers at his organization “have already had preliminary contacts with relatives of people in the secret detention facilities.”

He declined to discuss the identity of the detainee or relative who might be used in a test case.

A lawyer not affiliated with Mr. Ratner’s group said that a woman claiming to be the wife of a detainee held by the Central Intelligence Agency had recently met in Pakistan with an American lawyer who is already representing a Guantánamo detainee. The lawyer who talked about the meeting, speaking on the condition of anonymity because he was not directly involved in the case, said the discussions were very preliminary, involving the issue of whether American courts could be used to confirm her husband’s location and aid him somehow.

The possibility of using the Supreme Court opinion to reach to the secret detention facilities comes as the White House and Congress are engaged in discussions over possible changes in the law that could lessen the ruling’s impact. The court ruled 5 to 3 that the system of military commissions set up to try Guantánamo detainees violated both domestic law and a part of the Geneva Conventions known as Common Article Three, which prescribes minimal rights for all detainees.

The administration initially tried to keep secret the system run by the C.I.A., which is believed to hold about 30 prisoners, including senior leaders of Al Qaeda like Khalid Shaikh Mohammed and Abu Zubayda.

But the administration has since been obliged in court proceedings and elsewhere to acknowledge, by name, as many as 11 of those prisoners.

Because the prisoners, sometimes called high-value detainees, are named in court proceedings and in the official government report on the Sept. 11 attacks, lawyers have been given an opportunity to identify relatives who could speak for them. This would open the way to file a lawsuit alleging unlawful detention under the name of a relative who could claim to be the detainee’s “next friend,” a legal term that allows someone to assert rights on behalf of someone else who is unable to file a lawsuit.

Deborah Pearlstein, a lawyer with Human Rights First and a visiting scholar at Princeton University, said in an interview, “Human rights advocates for some time have been talking about how to resolve the legal status of the C.I.A.-held detainees who have been effectively ‘disappeared.’” She said the discussions had been given significant momentum with the Supreme Court ruling and the administration’s policy shift.

A different human rights lawyer, who also asked not to be identified because he was not directly involved in the issue, said that the problems in bringing such a lawsuit would be considerable. First of all, this lawyer said, the detainees are generally senior Qaeda operatives who may have been tied closely with planning the Sept. 11 attacks, making them exceedingly unsavory clients. In addition, relatives and friends of such people may, in the end, balk at engaging in the American legal system.

C.I.A. officials say they have ended harsh interrogation practices used on secret detainees. Yet the Bush administration’s decision to grant Common Article Three rights to C.I.A detainees means that the agency must now assess its interrogation practices against international standards of what constitutes “humiliating and degrading treatment.”

Moreover, the new rules mean that C.I.A. officials could be charged with federal crimes under the War Crimes Act for any future cases of detainee abuse.

Jeffrey H. Smith, a former general counsel for the C.I.A., said he believed that agency officers and interrogators would no longer risk engaging in any arguably abusive behavior toward the special detainees because they could no longer be certain of their authority.

“They want clean and unambiguous rules,” Mr. Smith said.

The Bush administration has never spoken of plans to hold trials for these terror suspects, and Common Article Three does not mandate that these prisoners be ultimately brought to trial.

According to Mr. Smith, the administration’s policy statement does not change the basic situation for the detainees held by the C.I.A. Even if they are no longer mistreated, he said, they are still being held indefinitely.

“One of the most difficult questions to address is, Under what authority do we continue to hold them and why,” Mr. Smith said. “And nothing has changed on that front.’’

Indeed not. And it is less than comforting that the author of the legally bogus “enemy combatant” policy is none other than Alberto Gonzales, the current US attorney general. And John Roberts, the current US chief justice, upheld the policy in the federal courts. So if rights advocates fail to make good thier offensive, we will be back from the frying pan to the fire just as soon as the administration has recouped its losses.

See our last posts on the torture scandal and the Geneva Conventions.