Jul. 12, 2006. 01:00 AM
THOMAS E. RICKS
SPECIAL TO THE STAR
WASHINGTON—The biggest effect of the Pentagon's acceptance of a recent Supreme Court ruling that requires it to abide by the Geneva Conventions on the treatment of prisoners probably won't be at the Guantanamo prison camp or in U.S. courts but on the battlefields of Iraq and Afghanistan, military lawyers and other experts said yesterday.
Experts said the justices' ruling removes much of the ambiguity about what sort of protections detained Iraqis, Afghans and foreign fighters enjoy and what rules apply to the actions of U.S. troops.
"It's a significant change in my view because the troops on the ground in Iraq have never been sure it was a requirement" to observe the Geneva rules, said Gary Solis, a former Marine Corps infantry commander who is an expert on the law of war. "It sets the philosophic tone for our soldiers and Marines.''
Before yesterday's announcement that all detainees in the war on terror held at Guantanamo Bay and elsewhere will be protected under the Geneva Conventions, the Bush administration had labelled terror suspects enemy combatants, refusing to legally recognize them as prisoners of war covered by the international accords.
The murkiness of the policy has been cited by some critics of the administration's operations in Iraq as contributing to a culture of abuse that led to inhumane treatment of inmates at Abu Ghraib prison and other sites.
Some human rights groups weren't persuaded the policy change would have any practical impact on about 450 Guantanamo detainees, including Canadian Omar Khadr.
"I welcome it as a policy statement, but I think the real issue is, are they now going to change conduct and not just their words," Washington lawyer Muneer Ahmad told the Toronto Star's Michelle Shephard yesterday.
Ahmad represents Khadr, Canada's only detainee at Guantanamo. Khadr, 19, is accused of throwing a grenade that killed a U.S. soldier in Afghanistan in 2002.
The Toronto teenager was one of 10 "enemy combatants" charged with war crimes and scheduled to be tried before a military commission, before the Supreme Court overturned those hearings as unconstitutional last month.
Indeed, in the short term, there probably will be few changes at the U.S. prison camp at Guantanamo Bay, a senior military lawyer predicted. That is primarily because some practices that clearly would violate the conventions' ban on "humiliating and degrading treatment," such as putting underwear on detainees' heads, were abandoned long ago, mainly because they were found to be ineffective, the lawyer said.
But, the lawyer added, the lack of definition in the conventions could make the new policy a rich area of litigation for defence lawyers, especially in a cross-cultural environment. For example, a Muslim prisoner might argue that in his culture being interrogated by a foreign female is an outrage on his personal dignity, and therefore inhumane.
"I think we've got to go back and start from scratch" in terms of defining how to apply the Geneva Conventions to detainees, said Scott Silliman, a former military attorney who teaches law at Duke University.
No matter how the Bush administration tried to present it, he said, "It's definitely a reversal of policy.''