Detainee Deal Comes With Contradictions
The compromise reached on Thursday between Congressional Republicans and the White House on the interrogations and trials of terrorism suspects is, legal experts said yesterday, a series of interlocking paradoxes.
It would impose new legal standards that it forbids the courts to enforce.
It would guarantee terrorist masterminds charged with war crimes an array of procedural protections. But it would bar hundreds of minor figures and people who say they are innocent bystanders from access to the courts to challenge their potentially lifelong detentions.
And while there is substantial disagreement about just which harsh interrogation techniques the compromise would prohibit, there is no dispute that it would allow military prosecutors to use statements that had been obtained under harsh techniques that are now banned.
The complex, technical and often ambiguous language in the 94-page measure was a subject of debate, posturing and, perhaps, some wishful thinking yesterday. Each side in the hard-fought negotiations — the White House and the three opposing Republican senators — declared victory.
And human rights groups simultaneously insisted that the new bill should be read to forbid various tough antiterrorism tactics and cautioned that the Bush administration had been given too much power to make the rules.
Some longtime critics of the administration expressed satisfaction with aspects of the compromise. They hailed the three senators who negotiated it, Lindsey Graham of South Carolina, John McCain of Arizona and John W. Warner of Virginia, as leaders who placed principle over politics in stopping the effort to redefine a provision of the Geneva Conventions knows as Common Article 3.
That provision bars, among other practices, “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
“The McCain, Graham, Warner trio really fought back and prevented the administration from winning its effort to reinterpret Common Article 3,” said Jennifer Daskal, the United States advocacy director for Human Rights Watch.
The proposed law, at least if it is interpreted honestly, Ms. Daskal said, would prohibit interrogation techniques like sleep deprivation, forced standing for long periods and extreme temperatures.
Others said that the negotiations were a sham and that an array of harsh techniques remained available.
“The only thing that was actually accomplished,” said Eric M. Freedman, a law professor at Hofstra University and the author of a book on habeas corpus, “was that the politicians got to announce the existence of a compromise. But in fact, most of the critical issues were not resolved.”
Martin S. Lederman, who teaches constitutional law at Georgetown, said the bill continued to allow the harsh treatment of detainees by the Central Intelligence Agency.
“They appear to have negotiated a statutory definition of cruel treatment that doesn’t cover the C.I.A. techniques,” Professor Lederman said. “And they purport to foreclose the ability of the courts to determine whether they satisfy the Geneva obligations.”
The bill would allow, and perhaps require, the president to issue regulations concerning “the meaning and application of the Geneva Conventions,” and it calls for them to be published in The Federal Register.
Legal experts differed about whether that bargain, trading power for transparency, was sound.
Changes to the procedures for the military commissions established to try terrorism suspects for war crimes also met with mixed responses. Revisions that would let defendants see the evidence against them were welcomed by military defense lawyers and human rights groups.
But some voiced concern that using statements obtained through coercion, even coercion forbidden by the McCain Amendment to Detainee Treatment Act of 2005, would still be allowed in many circumstances. So would be hearsay evidence, as well as a combination of the two.
“You create a situation,” Ms. Daskal said, “in which someone could be convicted based on a second- or third-hand statement from a detainee during an abusive interrogation.”
The issue that most engaged administration critics was the new bill’s aggressive and possibly constitutionally suspect efforts to keep the courts from hearing many detainees’ challenges or claims based on the Geneva Conventions. Though people charged with war crimes would receive trials before military commissions that largely resemble courts-martial and criminal prosecutions, the administration has announced plans to use just a score of those.
About 430 people are being held at Guantánamo Bay, Cuba, and there is no guarantee that they will ever be tried. The legislation, unchanged by the compromise, would prohibit habeas corpus challenges to these indefinite detentions.
“You’re creating a system,” Ms. Daskal said, “where Khalid Shaikh Mohammed,” called the mastermind of the Sept. 11, 2001, attacks, “will have more rights than the low-level detainee who was sold into U.S. custody by bounty hunters.”
Indeed, the propriety of indefinite detentions at Guantánamo will continue to be decided by combatant status review tribunals, or C.S.R.T.’s. The revised rules for military commissions do nothing to alter the tribunals’ unorthodox procedures.
"The C.S.R.T. is the first time in U.S. history in which the lawfulness of a person’s detention is based on evidence secured by torture that’s not shared with the prisoner, that he has the burden to rebut and without the assistance of counsel,” said Joseph Margulies, author of “Guantánamo and the Abuse of Presidential Power” (Simon & Schuster, 2006).
A limited appeal from adverse determinations of these tribunals is permitted, but habeas corpus challenges are not. That means, Professor Freedman said, that “the feature of the bill that does the greatest amount of harm to the American legal system remains untouched.”
The compromise adds a wrinkle, prohibiting the very invocation of the Geneva Conventions in civil cases and habeas proceedings and, depending on how one reads an ambiguous passage, perhaps criminal cases, too.
The Senate Judiciary Committee will hold hearings on Monday on limiting detainees’ habeas challenges. If Congress does not act, Professor Freedman said, the courts may reject the habeas provisions in the law.
“An attempt to throw out of court many hundreds of pending cases that the Supreme Court has twice held have a right to be there,” he said, “is not likely to be met with a favorable reaction in the Supreme Court.”
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