I don’t know if the administration’s “new” stance on Geneva rights for detainees is really all it’s cracked up to be. Here’s how the New York Times described the policy:
Pentagon officials released a memo that was issued last Friday ordering that all detainees be treated in compliance with Article 3 of the Geneva Conventions, which requires humane treatment and a minimum standard of judicial protections.
Okay, that’s the Pentagon. What about the CIA? Aren’t they holding—and possibly torturing—suspects in secret prisons all around the world? Will their detainees fall under the Geneva Conventions? If not, doesn’t that render this “new” policy pretty much useless? Extending protection only to prisoners in military custody won’t do much for people such as Khaled el-Masri, the man who was mistakenly detained by the CIA and allegedly tortured for several months in a small cell in Afghanistan.
One should also note, as Marty Lederman has in the past, that there’s a bit of a loophole here: what the Pentagon considers “humane” differs greatly from the Geneva definition of “humane.” A number of coercive interrogation techniques—such as stress positions and scenarios designed to make detainees believe that death is imminent for their family members—could very well carry on. That would be completely illegal of course—such things are expressly prohibited by Common Article 3 of the Geneva Conventions—but when has that ever stopped these people before?