Congress Adjusts to Detainee Deal

The rebellious Senate Republicans and the White House may have come to an agreement on language on how to treat detainees. But it remains to be seen where the Democrats stand — or how the deal will be received in the House of Representatives.

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More Republican lawmakers today threw their support behind yesterday's deal on detainees and interrogations. The White House and three key Republican senators reached a compromise under which detainees will be allowed to see at least summaries of the evidence presented against them in military tribunals and Congress agreed to give people who use coercive interrogation tactics some legal immunity.

What had been a two-week-long battle among Republicans over the detainee legislation may soon become a more partisan showdown. Today some key Congressional Democrats expressed deep concerns over parts of the deal.

More from NPR's David Welna.

DAVID WELNA: When top Republican lawmakers went to the microphones here at the Capitol yesterday to endorse the detainee rules compromise, there was one who clearly was not on board yet. House Armed Services Chairman Duncan Hunter objected to a provision that barred the use of secret evidence without allowing the accused to see it. But today Hunter dropped that objection and called a news conference to announce he backs the deal.

Representative DUNCAN HUNTER (Republican, California): When my attorneys went through this and said this is excellent, I said read it again. Let's go through it line by line. I then called up the head of the CIA and I said do you read this the same way we read it, and I described our take on this. And he said yes, I do. It gives them the protections that they need.

Representative JANE HARMON: (Democrat, California): If the deal is what it sounds like it is, it has a lot of good in it. What concerns me is whether or not Congress will exercise real oversight.

WELNA: That's California's Jane Harmon, the top Democrat on the House Intelligence Committee. She says Congress should insist that any interrogation techniques protected by the deal be disclosed and justified to the intelligence committees. Harmon admits it may require some courage for lawmakers to insist on such provisions.

Representative HARMON: This is a time to measure Congress. If we don't stand up, shame on us. It's election season. It's critical, I think, to tell the American people - I want to tell the American people - that we will do everything necessary to keep them safe. But I also want to tell the American people that we won't abandon our core values and our Constitution in the effort.

WELNA: That same refrain has often been heard from Republican John McCain, who led the rebellion in the Senate against the White House's version of the detainee rules.

But Morton Sklar, who heads the anti-torture group World Human Rights USA, says McCain appears to have given in to the White House to make a deal.

Mr. MORTON SKLAR (World Human Rights USA): I think there was a lot of pressure on him because of his presidential aspirations to come to some compromise with President Bush. And I think the other Republican senators had similar motives in terms of trying to get rid of these problems before the elections took place.

WELNA: Sklar thinks the deal struck yesterday undermines the Geneva Conventions by providing immunity to interrogators who use methods unacceptable to that international treaty.

But Michigan Democrat Carl Levin thinks his Republican colleagues on the Senate Armed Services Committee actually did well striking the deal.

Senator CARL LEVIN (Democrat, Michigan): Senators Warner, McCain and Graham really did an admirable job on this one of standing up to the administration. And there is a compromise bill here that, while it's got a number of problems, is really a substantial improvement over the administration's original language.

WELNA: But Levin's not ready to endorse the deal. He says it still has provisions that make it unacceptable.

Senator LEVIN: It's wrong for the president to try to assert the power in the CIA to go beyond what is allowed under our Constitution, what is allowed to the Army when it captures people. What it allows is it's going to do under this deal, for statements which are obtained before December 30, 2005 to be used in a criminal trial although they were obtained through cruel, unusual or inhumane treatment. It seems to me it really is not helpful at all to our own security because of the propaganda club that it hands to our enemy.

WELNA: Levin warned that allowing such coerced evidence could also set a precedent for other nations to follow similar practices with captured American forces. He and others in the Senate also object to the detainee legislation removing any right for a prisoner to challenge his or her detention or allege mistreatment in court. They hope to offer amendments when the bill reaches the Senate floor to change those provisions.

Much remains to be done for the bill to become law, with Congress due to remain in session only through next week before leaving for the midterm campaign season. House Republican Hunter says he's confident a week is enough.

Representative HUNTER: We're going to get this thing across the finish line. I think that's going to happen.

WELNA: House Democrat Harmon says lawmakers will try to get it done next week, but -

Representative HARMON: If we don't, we'll get there when we get there.

WELNA: David Welna, NPR News, the Capitol.

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What's in the Terrorism Detainee Bill?

Sen. John McCain (R-AZ) and Sen. Lindsey Graham hold a news conference at the U.S. Capitol

Sen. John McCain (R-AZ), left, and Sen. Lindsey Graham (R-SC) hold a news conference at the U.S. Capitol, Sept. 21, 2006, in Washington, D.C., to announce an accord with the White House over the interrogation of detainees in the administration's war on terrorism. Chip Somodevilla/Getty Images hide caption

itoggle caption Chip Somodevilla/Getty Images

After a weeks-long battle, the White House and moderate Republicans in Congress have reached a compromise on legislation that would let the president detain suspected terrorists at CIA prisons and try them at special military tribunals.

The proposed compromise legislation has two major elements. It sets out new guidelines on military commissions — the tribunals that will be used to try suspected terrorists at Guantanamo Bay — and clarifies policy with regard to the Geneva Conventions Common Article 3, which prohibits torture. Sprinkled throughout the bill are provisions dealing with access to courts and culpability for war crimes. Here, key points of the bill:

ON MILITARY COMMISSIONS

Secret Evidence

Defendants can't be convicted on the basis of evidence they haven't seen. If classified documents are necessary to prove the defendant's guilt or innocence, the judge will give the defendant summaries or edited versions of the documents.

Hearsay Evidence

Hearsay evidence is generally OK in these trials. A judge has to rule that the evidence is reliable and relevant to the case.

Evidence Obtained Through Torture

The tribunals won't admit evidence obtained through torture. Evidence obtained through coercive interrogation tactics that the Bush administration doesn't consider torture (such as "waterboarding," where a detainee is made to believe he's drowning, or "stress positions," where a detainee is made to sit or stand in a painful position for extended periods of time) may be used under some circumstances.

The bill also addresses statements that were obtained before Congress passed a ban on coercive interrogation tactics in 2005. In those instances, a judge must rule on the admissiability of the statement, determining if it is "reliable and possessing sufficient probative value," and if it serves "the interests of justice."

If the statement was obtained after Congress passed the 2005 ban, the military judge must decide whether it meets the above two criteria and must also find that "the interrogation methods used to obtain the statement do not violate the cruel, unusual or inhumane treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments to the Constitution."

ON THE GENEVA CONVENTIONS

Detainee Lawsuits

According to the bill, detainees held by the United States at any overseas location cannot file a lawsuit challenging their detention. This wipes out both pending and future lawsuits. The bill also says no one can file a lawsuit claiming a violation of their rights under the Geneva Conventions.

Presidential Power

The bill gives the president the power to "interpret the meaning and application of the Geneva Conventions," a phrase that may clash with another part of the bill, which says, "Nothing in this section shall affect the constitutional functions and responsibilities of Congress and the judicial branch."

Interrogation Tactics

The bill prohibits "grave breaches" of Common Article 3 of the Geneva Conventions. That includes "cruel or inhuman treatment." But it's unclear whether the definition of cruel or inhuman treatment encompasses waterboarding, stress positions, hypothermia, and the other interrogation tactics that the CIA has reportedly used against terrorism suspects.

Sen. Lindsey Graham (R-SC) said waterboarding "is a technique that we need to let the world know we are no longer engaging in." White House National Security Advisor Stephen Hadley wouldn't discuss specific interrogation tactics but said the CIA interrogation and detention program will be able continue under the proposed legislation.

War Crimes Act

The compromise legislation would narrow the range of offenses prohibited under the War Crimes Act. This would protect civilians (such as CIA interrogators and White House officials) from being prosecuted for committing acts that would have been considered war crimes under the old definition. The change is retroactive to 1997, which means any crimes committed since 1997 would be prosecuted under the new standard, not the old one.

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