HR 6054, the 'Military Trials for Enemy Combatants' bill, is presently scheduled to be brought before the House of Representatives. Certain Republican senators and Bush had a minor tussle over whether, as Bush demanded, the legislation would formally reinterpret U.S. compliance with the Geneva Conventions. On the face of it, the compromise legislation does not do this; however, there appear to be three clear routes to reinterpreting such compliance: one legislative, one semi-legislative, and one executive.
First, a legislative loophole. The present bill extends chapter 47 of title 10 of the U.S. Code to allow that the President or Secretary of Defense (or those acting under their authority) may designate a person an "enemy combatant" to be tried by a military commission; the President may also establish such commissions. One concern here is that the definition of "enemy combatant" is worded so that its targeted designees might very well not count as prisoners of war under the Geneva Conventions:
The definition of Lawful Enemy Combatant diverges substantially from the Geneva Convention III Article 4 (for example, "regular forces" vs "armed forces") definitions for a Prisoner of War, thus restricting the domestic law position as to the applicability of the Geneva Convention to covered groups. The effect is to return to a pre-Geneva Conventions standard of the kind described by Justice Thomas in his dissent in Hamdan, and implicitly the harsh treatment accorded such persons pre-1949.
Somewhat tempering this concern is the explicit recognition that a military commission is "a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions", which among other things forbids (subsection 1(a)) "Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" and (subsection 1(c)) "Outrages upon personal dignity, in particular, humiliating and degrading treatment" .
So far, so good, until you get to the part where conformity with Article 3 is defined:
IN GENERAL.—Satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd) shall fully satisfy United States obligations with respect to the standards for detention and treatment established by section 1 of Common Article 3 of the Geneva Conventions, with the exception of the obligations imposed by subsections 1(b) and 1(d) of such Article.
That is to say, conformity to the prohibitions stated in subsections 1(a) and 1(c) (cited above) is interpreted as per the relevant section of the Detainee Treatment Act of 2005 (sponsored by John McCain). So, what standards for conformity does that act impose? Answer: the standards provided by the Army Field Manual on Interrogation, long serving as a fairly constrained basis for interrogation operations, which Rumsfeld and others had discarded on the way to Guantanamo Bay and elsewhere.
One problem with basing conformity to the Geneva Conventions on the Field Manual is that the the Manual has long required that interrogation techniques conform to the Geneva Conventions. But the larger problem is that, as McCain acknowledged, the Act "would not set the Field Manual in stone – it could be changed at any time". Indeed, one month after McCain introduced the legislation Rumsfeld announced that the manual would be rewritten by the Pentagon; the revision scheduled for release this past spring contained 10 classified pages in the interrogation techniques section, and moreover specifically elided various proscriptions from Article 3 of the Geneva Convention (not, presumably, in order to avoid HR 6054's being circular). Thankfully, the State Department and other factions put up sufficient resistance to the proposal that it was scrapped in favor of a new version (not yet released) according to which "All detainees will be treated consistent with Common Article 3 of the Geneva Convention" (so says an unnamed military official, anyway). Still, the concern remains that since the Manual is not "set in stone", HR 6054's standards of conformity to the Geneva Conventions could end up being such as to clearly abrogate the conventions.
Second, a semi-legislative loophole. Upon approving the Detainee Treatment Act (tagged on as an amendment to a Defense Appropriations Bill), Bush issued one of his infamous signing statements, stating
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.
Title X specifically covers Section 1003 (named in HR 6054 as setting the standards of conformity to the Geneva Conventions). Signing statements arguably impact the interpretation and implementation of the associated legislation:
Rather than veto laws passed by Congress, Bush is using his signing statements to effectively nullify them as they relate to the executive branch. These statements, for him, function as directives to executive branch departments and agencies as to how they are to implement the relevant law.
Hence even supposing the Field Manual retains formal conformity to the Geneva Conventions, HR 6054's conformity to these Conventions as per the "Detainee Treatment Act" may ultimately be subject to Bush's (more generally, executive) reinterpretation.
On to the third, directly executive, loophole. In any case Bush evidently intends to ignore any limits that might be set by (a proper understanding of) the Geneva Conventions:
The bad news is that Mr. Bush, as he made clear yesterday, intends to continue using the CIA to secretly detain and abuse certain terrorist suspects. He will do so by issuing his own interpretation of the Geneva Conventions in an executive order and by relying on questionable Justice Department opinions that authorize such practices as exposing prisoners to hypothermia and prolonged sleep deprivation. Under the compromise agreed to yesterday, Congress would recognize his authority to take these steps and prevent prisoners from appealing them to U.S. courts. The bill would also immunize CIA personnel from prosecution for all but the most serious abuses and protect those who in the past violated U.S. law against war crimes.
Perhaps one form of such an "executive order" will take the form of a signing statement, assuming HR 6054 is passed. The upshot of this and the previous loopholes:
In effect, the agreement means that U.S. violations of international human rights law can continue as long as Mr. Bush is president, with Congress's tacit assent.