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. Last Updated: 07/27/2016

Bush Softening Stance in U.S. War on Terror

WASHINGTON -- From the outset, U.S. President George W. Bush declared that the battle against al-Qaida would be a war like no other, fought by new rules against new enemies not entitled to the old protections afforded to either prisoners of war or criminal defendants.

But the White House acknowledgment Tuesday that a key clause of the Geneva Conventions applies to al-Qaida detainees, as a recent Supreme Court ruling affirmed, is only the latest step in the gradual erosion of the administration's aggressive legal stance.

Scholars have debated the meaning of a U.S. Defense Department memo made public Tuesday that declared the clause in the Geneva Conventions, Common Article 3, "applies as a matter of law to the conflict with al-Qaida."

Administration officials suggested the memo only restated what was already policy -- that detainees must be treated "humanely." But what was undeniable was that the president's executive order of Feb. 7, 2002, declared Article 3 did not apply to al-Qaida or to Taliban detainees, and that the newly released memo, written by U.S. Deputy Defense Secretary Gordon England, said it did.

"This is an important course correction, and there are political ramifications to it," said Scott Silliman, an expert on the law of war at Duke University. Top defense officials "never really clarified when Geneva applied and when it didn't."

After May 2004 revelations of abuse of prisoners at Abu Ghraib, the Defense Department repeatedly whittled down the list of approved interrogation techniques.

In 2004, the U.S. Justice Department reversed course as well, formally withdrawing a 2002 opinion asserting that nothing short of treatment resulting in "organ failure" was banned as torture.

In late 2005, the administration was forced to accept legislation proposed by U.S. Senator John McCain of Arizona, to ban "cruel, inhuman or degrading treatment" of prisoners held by the United States anywhere in the world.

If there has been a retreat from the administration's original stance, it may partly reflect a change in the perceived threat from al-Qaida since the disorienting days after Sept. 11, 2001. As months, then years, passed without a new attack in the United States, the toughest measures seemed steadily less justifiable. "As time passed, and no more buildings were blowing up, it was no longer an emergency, and the rules had to be renegotiated," said Dennis Showalter, a professor of history at Colorado College.