Following three Supreme Court rulings, several new federal laws and an overhaul of the Army Field Manual on Interrogation, many administration policies have been changed. The Pentagon's practices -- including the military commissions at Guantanamo -- are in line with Article 75, officials said.
But the CIA program remains secretive. Bush earlier this year vetoed a bill that would have blocked the CIA from using harsh methods such as waterboarding.
Formal administration recognition of the international standard, as proposed by the State Department, could force changes.
"If the U.S. were to take the view this is international law, that would apply across the board," said an administration official who, like others, discussed the ongoing debate on condition of anonymity. "Treatment standards within the CIA program would have to be consistent with it, or we would be breaching international law."
At first, Bellinger's letter to Haynes received little attention. In recent months, Sandra Hodgkinson, the deputy assistant secretary of Defense for detainee affairs, took the request to Deputy Defense Secretary Gordon R. England, the No. 2 civilian in the Pentagon.
Officials said that England was intrigued by the proposal, but that lawyers at the Justice Department had raised questions about the wisdom of formal recognition. By recognizing the standard as "customary law," the U.S. would be bound to adhere to it, even without Senate ratification.
Hodgkinson declined to discuss "internal correspondence" or her role in advising top Pentagon officials. But she said the administration did not have a "unified position" on Article 75.
"That discussion is still ongoing within the government," she said. "There hasn't been agreement at this time about whether it constitutes customary international law."
Some officials are concerned that recognition of Article 75 could allow other nations to challenge U.S. detention policies. The addendum contains terms -- like "mental well-being" and "corporal punishment" -- that have been interpreted internationally in ways the U.S. might not agree with, the administration official said.
"There is concern the terms are vague," the official said.
Charles Stimson, Hodgkinson's predecessor at the Pentagon, said that much of the substance of Article 75 had been incorporated into Defense Department policy. While at the Pentagon, Stimson added many of the provisions into Pentagon rules.
"I felt very strongly at the time that those were common-sense provisions from Article 75 that we needed to have in there," Stimson said.
Hodgkinson agreed that the Defense Department's detention operations are in compliance with Article 75, something the Pentagon has told allies who have raised the issue.
"Which prompts the question: If you do it, why don't you say it is the law?" Hodgkinson said. "And that is what makes this an interesting discussion."
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julian.barnes@latimes.com
