The Finanical Times reports that the Department of Defense has issued a major policy change, explicitly applying the Geneva Convention to GWOT detainees for the first time. After the Supreme Court ruling in Hamdan, many expected the Bush administration to fight the court's interpretation of Article 3 in Congress, but apparently Bush has decided to concede the point:

The White House confirmed on Tuesday that the Pentagon had decided, in a major policy shift, that all detainees held in US military custody around the world are entitled to protection under the Geneva Conventions.

The FT has learned that Gordon England, deputy defence secretary, sent a memo to senior defence officials and military officers last Friday, telling them that Common Article 3 of the Geneva Conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody. ...

While Mr Bush declined to apply the Geneva conventions to Taliban and al-Qaeda captives, he ordered in 2002 that “detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”. But his critics argued that the wording of his order provided large loopholes that could be exploited to abuse prisoners.

While the Pentagon order applies to all detainees held by the US military, it does not apply to prisoners held outside the military detention system, such as Khaled Sheikh Mohammed, the alleged mastermind of the September 11 attacks who is being held in a secret Central Intelligence Agency prison. But the Pentagon move could increase pressure on the administration to re-examine CIA detention policies and practices.

The controversy resulted from a disagreement on how (and whether) to apply Article 3 of the GC to the war on terror. The conventions require reciprocity, and technically do not come into force when one of the antagonists are not signatories to the document, or when they fail to adhere to the GC on their own. Article 3 reads in full (emphases mine):

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

The Court relied on this to reach its decision in Hamdan. However, one has to wonder whether they read Article 2:

Art. 2. In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

While Afghanistan, even under Taliban rule, remained a signatory to the GC (and never had much opportunity to abide by it in terms of treatment of prisoners), AQ does not qualify under any circumstances. For those terrorists captured outside of the Afghanistan phase of the war, this means that the ruling of Hamdan should not apply. The FT's reference to Khalid Sheikh Mohammed serves as a case in point. The US has no obligation under the Geneva Convention to offer him any kind of guarantees regarding his detention.

The Bush administration has really not given up much in this agreement, other than having the obvious climb-down over their technically correct but politically untenable application of the GC. It gives Bush slightly less flexibility in handling the Gitmo detainees, but only in the short run. We probably have all the actionable intelligence we will get from these detainees by this time. Congress appears ready to create a framework for military tribunals for those held at that facility in order to expedite a resolution to their status. The Gitmo situation wouldn't have lasted too much longer in any circumstance, and the nature of the war will not likely involve battlefields like Afghanistan in the future.

The real effect of this decision will be felt in international relations. Our allies will have themselves a victory in US policy that they can trumpet to their voters, and Bush will have less turbulence at home among the more squeamish of his political base in Congress. The only practical result in the field may come with less captures and more casualties for our enemies, as we will not put our soldiers at unnecessary risk for the minimal gain of capturing these terrorists if they give us no opportunity for giving us intel on ongoing operations.

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