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Published: Sunday, 11/28/2004

Defying Geneva Conventions

At one time the rule of law was practically a patented phrase among Republicans. Party members routinely raised it when exploiting the foibles of their opponents. It was almost a creed they swore allegiance to in the bad old days of impeachment and special counsel investigations.

But apparently it has different applications on the international stage, where it can be flouted at will. Critics have long charged that the Bush Administration has been ignoring the provisions of the Geneva Conventions with hundreds of prisoners at Guantanamo Bay Navy Base.

In a landmark decision with huge ramifications, a federal judge rightly agreed, saying in effect the rule of law as set forth in the Geneva Conventions cannot be applied piecemeal by the administration.

At issue is not whether the government can hold prisoners in the ongoing war against terrorism but rather how the Pentagon can hold and prosecute them under international law.

U.S. District Judge James Robertson issued his decision in the case of a detainee captured in Afghanistan in 2001. Yemeni captive Salim Hamdan was accused of being a member of al-Qaeda and once a driver for Osama bin Laden.

He was being tried by one of the Bush Administration's military tribunals when a federal court in Washington stopped everything with a ruling that the commissions were neither lawful nor proper.

Judge Robertson said the government should have held special hearings first to determine the status of detainees under the Geneva Conventions and whether they qualified for established prisoner-of-war protections. But the Defense Department insists portions of the Geneva Conventions don't apply to the alleged terrorists, won't hold the required hearings, and even refuses to use the military's own system of justice to prosecute detainees in courts-martial.

Instead the Bush Administration has conferred a blanket category of "enemy combatants" on all the captives and opted for a pick-and-choose approach to which prisoner will be afforded Geneva protections. The judge pointedly said that strategy could come back to haunt America by putting its troops at risk.

"The government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts," he wrote, "one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad."

It doesn't get much more straightforward than that. The United States is either committed to following the rule of law or it is not, and its citizens and troops will be treated with the same consideration or lack thereof.

Yet the Bush Administration remains adamant about following its own rules in the offshore prison camp it set up after Sept. 11, 2001. Despite the court ruling calling the military tribunals unlawful, Guantanamo detainees continue to move through the process that gives them no POW consideration.

The Justice Department is seeking a stay of the ruling and will file an appeal setting the scene for a future military-civilian confrontation over whether it's more virtuous to adhere to the established code of military justice or wield the power to ignore it.



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