Due Process and the Trial of Terrorism Suspects

The White House and key Senate Republicans finally agree on how to question and prosecute suspected terrorists. As experts sort through the details, questions arise. Law professors David Scheffer of Northwestern and Douglas Kmiec of Pepperdine discuss the bill with Debbie Elliott.

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DEBBIE ELLIOTT, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Debbie Elliott.

This weekend, legal experts and politicians are sorting through the compromise reached by key Senate Republicans and the White House over how to interrogate and try terror suspects.

The bill is intended, among other things, to allow the CIA to continue to use aggressive interrogation techniques. One of its provisions would protect interrogators and their bosses from prosecution under the federal War Crimes Act. The compromise calls on Congress to grant immunity dating back to 1997 to agents who use or have used coercive and abusive techniques to get information from suspected terrorists.

We're going to spend some time now looking at retroactive immunity and whether the courts would uphold it. We're joined by two law professors: David Scheffer of Northwestern University, and Douglas Kmiec of Pepperdine University.

Mr. Scheffer is a former U.S. ambassador at large for war crimes in the Clinton administration. Mr. Kmiec is a former Justice Department official who worked in the Reagan and first Bush administrations.

Professor Kmiec, why shouldn't CIA agents be bound by the 1996 War Crimes Act?

Professor DOUGLAS KMIEC (Pepperdine University): Well, it's a basic matter of fundamental due process, that if you're going to deprive someone of their liberty or if you're going to impose some other criminal sanction upon them, that the crime be well-defined and that the crime be known in advance, then one has to turn to the language of Common Article 3, and 3, which...

ELLIOTT: And you're talking about Common Article 3 of the Geneva Conventions.

Prof. KMIEC: That's right, Common Article 3 of the Geneva Convention, which before the Hamdan decision of the Supreme Court didn't clearly apply to al-Qaida and which prohibits questioning or treatment that outrages - outrages upon personal dignity or degrading or humiliating treatment. And that was a surprise. And as a matter of due process, you don't surprise people with liability.

And the president basically said, now that the Supreme Court has applied these fairly general standards, what does that mean for purposes of practicality? What does that mean for purposes of interrogation? And the purpose of the compromise is to flesh that out, to give that some definition, to have those standards apply prospectively, and not to have retroactive prosecution for the activities that took place before the Geneva Convention was construed as clearly applying to the interrogators.

ELLIOTT: Professor Scheffer, should the CIA interrogators have been surprised that they were bound by liability under the War Crimes Act?

Professor DAVID SCHEFFER (Northwestern University): Absolutely not. I couldn't disagree more fundamentally with Professor Kmiec on this point.

This was federal law. The War Crimes Act of 1966 was amended in 1997 to specifically include Common Article 3. That was a bipartisan consensus on the part of Congress to include violations of Common Article 3.

Now, either that provision in federal law has content or it's meaningless. When we did this in the Clinton administration, the whole point was to implement the 1949 Geneva Conventions. We hadn't done that. We had ratified them in the mid-1950s, but we had enacted the implementing legislation to insure that it's in our criminal code as well. We got to that in 1996 and again in '97.

And so there was clear notice that if you undertake interrogation and tactics of interrogation that would raise serious questions as to compliance with Common Article 3, then you need to be extremely careful about what your tactics are. You can't simply ignore it.

Now, the U.S. military has been able to do it for years, and in fact they just issued another U.S. Army field manual on interrogation techniques that fits within the four corners of Common Article 3. I don't think many foreign militaries or governments or foreign courts would disagree with the way the U.S. Army field manual has been written for our military interrogations.

That kind of jurisprudence is out there and any general counsel at the CIA doing his or her job would have properly advised the interrogators of what this actually means.

ELLIOTT: Now, if Congress indeed passes this retroactive immunity, would it apply only to charges under the U.S. War Crimes Act or could it also protect U.S. officials from some other charges, say, under the Geneva Conventions?

Prof. SCHEFFER: Well, that is the dangerous element of this particular legislation that has been put forward. First of all, it emits a very odious scent internationally for us now to immunize retroactively what the administration itself argued was lawful the whole time but now seems to infer, well, maybe it was illegal so we better clean our shop up and immunize ourselves.

It's a very sloppy way of adhering to the law and then of legislating law. So while this legislation may have the comfort of insulating officials in U.S. courts - and although I would debate that proposition if it's challenged in court for its constitutionality and otherwise - the fact is that overseas, I think it makes it a far more dangerous situation for American officials, because those courts are going to look at this, those governments are going to look at this, and they're going to say, hey, we can carve out our own methodology and interpretation of Common Article 3 and we're going to make sure that that interpretation nails the Americans.

ELLIOTT: Let's talk a little bit about the way courts might look at this. If Congress were to pass this compromise retroactively amending this law, is that going to hold up in the courts?

Prof. KMIEC: I think it will hold up in the court for the following reasons: that the Supreme Court plurality indicates that the Supreme Court's objections were not largely constitutional. They were specifically statutory.

And what Senator McCain and Senators Graham and Warner have been careful to do - and I think this, to some degree, is reflecting some of the concern that Professor Scheffer mentioned about international opinion - is that they are - they wanted to be very careful to say that what we were modifying by this compromise was the interpretation of the War Crimes Act and our domestic understanding of the War Crimes Act, and we were not in any way seeking to undermine our allegiance to the protections of the Geneva Convention or their meaning.

Now, the president, I think, to some degree said that might be a distinction without a difference, but in terms of international sensibilities, it might not be. And my judgment is, is that this will be a sustainable compromise in court, largely because the members of the Senate and the executive have responded to the Supreme Court's judgment in a way that is within the scope of that judgment.

ELLIOTT: Professor Scheffer, has Congress done this with other laws? Is it typical to retroactively amend a law?

Prof. SCHEFFER: There is precedent whereby you diminish or greatly diminish the punishment for prior criminal acts, and that has been upheld by the Supreme Court.

But what I think will be reviewed as rather unorthodox, when you have a treaty obligation such as Common Article 3 and a federal statute such as the War Crimes Act of 1996 that you retroactively simply eliminate whole swaths of culpability for any individuals who may have violated either act or the treaty obligation as implemented through the act for a certain period of time. So I think that will be considered unorthodox.

And it will be interesting, as this percolates now again up through the courts - because this will certainly be challenged if adopted - is what about the victims' right? I mean, you have victims for the last 10 years who may have been subjected to some of theses treatments. And what this law is doing is stripping them of any recourse, any remedy whatsoever through the courts.

ELLIOTT: Does this kind of immunity in any way encourage agents to test the boundaries of what might be acceptable in an interrogation room, if they know they're going to have this immunity?

Prof. SCHEFFER: Absolutely, because with the specificity that's now provided in this legislation, the interrogator knows that he can push right up to the limit of that specific definition. And he may say to himself, well, this might somehow be construed as a violation of Common Article 3, but I know for sure that I have no criminal liability under this.

And when you look at these definitions that are in this act, they're very, very poorly and narrowly drafted. You can push right up to the limit and do extreme harm to an individual, extreme harm and abuse, which I would never want to see an American of any stripe, official or otherwise, subjected to overseas. But this invites such treatment.

Prof. KMIEC: I think - no surprise - this is going to be the opposite, that this is not going to encourage pushing to the limit. This is going to encourage lawful behavior, staying within the context of defined limits. For the first time we're taking very general phrases and we're putting the names of particular crimes on them. We're specifying murder, torture, rape and so forth, as the convention has always done, but then we're adding to it categories of extreme physical pain, physical harm, serious mental harm, all of which has to be filled out by rules and regulations which the president will promulgate and promulgate with notice and in a public way that will hopefully stimulate a very careful oversight by Congress announcing the law in advance, making it clear, setting the boundaries.

It doesn't invite lawless behavior. It invites the opposite.

ELLIOTT: Law professors Douglas Kmiec of Pepperdine University and David Scheffer of Northwestern University, thank you both for speaking with us.

Prof. KMIEC: Good to be with you, Deb.

Prof. SCHEFFER: Thank you very much.

ELLIOT: NPR's Ari Shapiro highlights elements of the proposed terror detainee bill at our Web site, npr.org.

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