BasketballJones
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On Rough Treatment, a Rough Accord
By R. Jeffrey Smith Washington Post Staff Writer Saturday, September 23, 2006; Page A06
Draft legislation to create a new system of military courts for terrorism suspects would allow prosecutors to introduce at future trials confessions that were obtained through "cruel, unusual, or inhumane" interrogations by the CIA or the military before 2005, but not afterward.
The legislation would also allow defense attorneys to challenge the use of hearsay information obtained through coercive interrogations in distant countries only if they can prove it is unreliable, a daunting task if the information consists of written statements from people the lawyers have no right to confront in court.
These complex provisions reflect some of the last-minute changes to broad legislation drafted by the White House and Republican lawmakers to establish a unique set of rules for detaining, interrogating and trying foreigners believed to be involved in hostilities against the United States.
The bill is designed to confer Congress's approval for the first extrajudicial U.S. trials of non-soldiers since World War II. Many of its provisions were put in to ensure that the rough detention and interrogation policies adopted by the Bush administration in 2001 and 2002 -- and ruled illegal in June by the Supreme Court -- may continue undisturbed.
The 94-page text is dotted with language crafted not only to support future rough interrogations by the CIA but also to improve the odds of obtaining criminal convictions of detainees and to immunize officials for previous violations of a federal law governing detainee abuse. The bill was introduced by Republican leaders in the Senate yesterday after brief discussions with their House counterparts.
Many human rights groups and legal experts who parsed the bill yesterday said the White House had achieved most of its objectives in negotiations with dissident GOP senators, including John McCain (Ariz.), Lindsey O. Graham (S.C.) and John W. Warner (Va.).
They said the bill's provisions would violate detainees' legitimate rights, conflict with Supreme Court decisions, and come back to haunt Washington when Americans in foreign custody are subjected to the same harsh interrogations and military trials.
"It replaces the old broken" military trial system ruled illegal by the Supreme Court with "a new broken commission system," said Marine Corps Col. Dwight Sullivan, the chief defense counsel for the Defense Department's Office of Military Commissions. He said "it methodically strips rights" guaranteed by laws and treaties and appears to be unconstitutional.
Human Rights First and Human Rights Watch praised the compromise language as an improvement over the administration's initial proposals. But they felt it necessary to press McCain to spell out in a planned television appearance tomorrow his view that the legislation would bar at least three categories of abusive CIA interrogations: waterboarding, which simulates drowning; extreme sleep deprivation; and "stress positions" such as lengthy forced standing.
The bill is complex partly because negotiations were rushed, following a timetable set by President Bush. The White House wants Congress to pass the legislation before adjourning at the end of next week, expecting Democrats to withhold challenges to its most controversial provisions in the pre-election period for fear of being portrayed as soft on terrorism.
But the language is also opaque because its chief objective -- the legitimization of irregular interrogations by the CIA -- is a topic shrouded in official secrecy.
"As you know, specific techniques are classified," White House national security adviser Stephen J. Hadley said Thursday evening when he was asked which interrogation techniques the law sanctions. "This whole effort is to get a legal framework supported by the Congress" without letting terrorists know exactly what they will confront after capture, Hadley said. But he added that the draft language meets the CIA's needs.
From the outset, the challenge for the bill's Republican authors was to fit the government's desire for rough treatment and long detentions of terrorism suspects into a web of domestic and international rules and laws requiring fair trials and humane treatment for those held in captivity anywhere. These include the 10-year-old U.S. War Crimes Act, and the 50-year old Geneva Conventions.
Critics said yesterday that the bill's language abuses both of these, as well as the U.S. Constitution. For example, it would bar detainees from challenging the legality of their detention or treatment by the CIA or the U.S. military in any court. The administration has said this controversial "court-stripping" provision is needed so that dangerous detainees could be subjected to lengthy interrogations without hope of release before military trials and could not obstruct or delay trials.
But defense lawyers, a group of retired federal judges and the American Bar Association say the provision violates due-process guarantees and Supreme Court decisions.
"Eliminating habeas is tantamount to letting hundreds of Guantanamo prisoners rot in jail," said David H. Remes, a Covington & Burlington lawyer who has represented several Yemeni detainees. "If the government does not have a valid basis for holding someone in jail, that person should have some recourse."
The bill would also bar detainees from citing the Geneva Conventions -- which the United States ratified in 1949 -- "as a source of rights" in any U.S. court, including the military panels or "commissions" established by the new law. It further states that President Bush has the authority to interpret the meaning of a Geneva Conventions provision barring detainee abuses that fall below the threshold of "grave breaches."
Although the law states that Bush "shall issue" his interpretations in published executive orders, White House spokesman Tony Snow said yesterday that administration lawyers told him that such publication -- which McCain and others have highlighted as a major White House concession -- might not be necessary.
Another provision would explicitly bar U.S. courts from considering any "foreign or international source of law" in deciding what U.S. interrogators can lawfully do under the War Crimes Act. Eugene R. Fidell, president of the nonprofit National Institute of Military Justice, said this appears to represent one facet of a broad administration effort to keep its treatment of terrorism suspects "hermetically sealed" from treaties and the traditional law of military justice.
"God forbid there should be any infection from foreign sources," Fidell said in a joking summary of the administration's strategy.
"Context is crucial here," said Diane Orentlicher, a professor of international law at American University who studies war crimes. "The administration has tenaciously fought for a legal space to undertake 'harsh' interrogation techniques that, it claims unpersuasively, are perfectly compatible with U.S. treaty obligations. By prohibiting victims of even the most severe war crimes from invoking the Geneva Conventions in habeas or civil actions," the agreed-upon version of the bill would undermine the included detainee protections, she said. [Edited by - basketballjones on 09-23-2006 20:09][Edited by - basketballjones on 09-23-2006 20:10]
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