Detainee Legislation Driven by Court Decision

Host Liane Hansen speaks to Walter Dellinger about the reasons behind the debate over detainee legislation, specifically the June 2006 Supreme Court decision in Hamdan v. Rumsfeld. Dellinger served as Assistant Attorney General and head of the Office of Legal Counsel in the Clinton administration.

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LIANE HANSEN, host:

The wrangling over detainee detention and abuse entered a new phase this week. When the White House and rebellious Republican senators worked out a compromise agreement, both sides pronounced satisfaction with the result. Yet this debate might not have taken place were it not for the Supreme Court ruling in Hamdan versus Rumsfeld earlier this year. That decision struck down the military commissions devised by the administration, and made it clear that the Geneva Conventions had been violated. The new legislation is intended to solve those problems.

Joining us by phone is Walter Dellinger who served as assistant attorney general and head of the Office of Legal Counsel in the Clinton administration.

Welcome to the show, sir.

Mr. WALTER DELLINGER (Former Assistant Attorney General): Thank you.

HANSEN: Do you think the compromise legislation sufficiently answers the Supreme Court's objections in terms of the detainee trials and upholding the Geneva Conventions?

Mr. DELLINGER: I think it answers the Court's big objection, which is that the president was acting on his own and in violation of existing statutes. In other words, the president has asserted unilateral authority - indeed, proceeded in secret - to decide that he could violate basically two acts of Congress that regulated the treatment of detainees and the nature of the trials. And the Court held that the president had to comply with acts of Congress.

That being said, the Congress has largely given the president what he wanted, and has done so in a way that in a sense forecloses the courts from effective future review of what the president does.

HANSEN: The president had wanted clarification of Common Article 3 of the Geneva Conventions that outlaws detainee torture and abuse. And the compromise legislation doesn't do that, but it does give the president authority to interpret certain elements of Common Article 3. What does that really mean in plain terms?

Mr. DELLINGER: I think what it means is, in plain terms, that the United States continues to maintain that it will comply with the Geneva Conventions but has - Congress has taken steps to ensure that no one can effectively enforce that. It does it in about three different ways.

First, it says that the president has the authority for the United States to interpret the meaning and application of the Geneva Conventions. So that if the president says we're in compliance, the act says that will be a final determination. And Congress can probably do that, because they amend the War Crimes Act, which was the act of Congress. It made the Geneva Conventions actually applicable as U.S. law, so they've given the president the authority to do that.

Secondly, they've actually amended the War Crimes Act itself, the 1990s legislation that made violation of the Geneva Convention a violation of U.S. law, to narrow the range of offenses.

But most importantly - in addition to giving the president the power to interpret the bill - has provisions that prohibit detainees from filing lawsuits. So that it says that - and really, the provisions that I think will cause the most concern by those who thought we need to bring this under the - sort of under the rule of law, is that - is it the act provides that no person held by the United States as a detainee can bring any lawsuit if they're held over - in an overseas location.

And it wipes out both all the pending lawsuits and any future lawsuits, and indeed says that no person may invoke the Geneva Conventions in any action to which the United States is a party.

So that it pretty much says it's up to the president to decide the meaning of this and tries in two different ways to prevent the courts from taking a second look at it.

HANSEN: It also includes terms that prevents detainees in U.S. custody from challenging the legality of their detention. Does this mean that they could be locked up forever with no recourse?

Mr. DELLINGER: Apparently so. It's quite striking. But what the act does is to provide some reasonably fair procedures for those who are actually brought to trial. It amends the speedy - but it takes away some of the rights that people would have in military trials generally. But it provides fair procedures. It even provides for some appellate review to the courts.

But for all the detainees who are not tried - and the bill gets rid of the speedy trial provisions - for all the detainees who are simply held in custody, they're forbidden from challenging either the fact of or the circumstances of their detention in court. So while the bill says at the end that the U.S. shall not engage in cruel, inhumane treatment, it goes as far as it can, I believe, to prevent anyone from actually being able to bring such a claim in court.

HANSEN: Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke University. He served as assistant attorney general and head of the Office of Legal Counsel in the Clinton administration. Thank you very much.

Prof. DELLINGER: Thank you.

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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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