Critics Ready for New Detainee Treatment Bill

A bill in Congress outlining how to handle terrorism suspects has yet to come up for a vote. But that hasn't stopped human rights groups from making plans to challenge it in court if it becomes law. Legal experts are divided on whether the bill could get through the courts.

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And that detainee bill has not even come up for a vote yet and human rights groups are already making plans to challenge it in court if it becomes law.

NPR's Ari Shapiro reports on whether legal experts believe the bill can pass court muster.

ARI SHAPIRO: Supporters and opponents of the new proposal agree: By the time this legislation reaches a judge, it will be much harder to strike down than the president's old system for detaining and trying terrorism suspects. One of the main reasons the Supreme Court threw out the old system was that the White House created it without congressional support.

Law Professor Bobby Chesney runs the blog National Security Advisors.

Professor BOBBY CHESNEY (Co-Creator, National Security Advisors Blog; Professor of Law, Wake Forest University): Now we're seeing joint action by the elected branches. That puts the administration's programs in a much stronger light when next they're challenged in the Supreme Court.

SHAPIRO: And they will be challenged. Mary Ellen O'Connell teaches law at Notre Dame.

Ms. MARY ELLEN O'CONNELL (Professor of Law, University of Notre Dame): In the act itself there's the possibility for the detainee who has been tried before the new military commissions to eventually appeal to the D.C. Circuit Court of Appeals and then to the United States Supreme Court.

SHAPIRO: Under the terms of the bill there are many issues the detainees cannot raise at those appeals. They can't challenge the conditions of their confinement or claim that their rights were violated under the Geneva Conventions.

But they can challenge the rules for military commissions. Those rules would allow hearsay evidence and, under some circumstances, evidence obtained through coercive interrogation tactics. The trials would also allow classified evidence as long as the defendant gets to see a summary or redacted version.

Former Air Force lawyer Jeffrey Walker says the classified evidence rule could be a problem when the Supreme Court reviews these procedures. He says defendants are usually allowed to confront their accusers, and these rules may not meet that standard.

Mr. JEFFREY WALKER (Former Judge Advocate, U.S. Air Force, Retired): You're supposed to be able to see the evidence, see the witnesses, see the people and the things that are accusing you of the crime to be able to effectively cross-examine, to offer rebuttal evidence, what have you.

The first thing that's going to get, you know, crossed out with the black marks a lot is going to be the name of the person that gave them the evidence. You've got a problem, right?

SHAPIRO: Walker says if you don't know who testified against you, you can't challenge that person's reliability, which means you can't adequately defend yourself.

David Rivkin who worked in the White House and Justice Department under President Reagan and the first President Bush doesn't think that's a problem.

Mr. DAVID RIVKIN (Former Staff Member, Department of Justice): I've every confidence that the military commission structure would be upheld in part because also the procedures established in total are extremely fair and provide the accused with a great degree of due process.

SHAPIRO: There are other ways to challenge this proposed law besides simply appealing a guilty verdict under the military commissions. Last year, Congress barred detainees from filing new lawsuits challenging their detention. The bill as written would eliminate pending lawsuits too. Professor O'Connell says that's bound to come before a court.

Ms. O'CONNELL: That's a serious constitutional question about whether Congress can interfere in the work of the courts to that extent, to take away cases that are currently pending.

SHAPIRO: The Senate Judiciary Committee has a hearing today about whether that provision should be in the bill at all. If it stays, Rivkin is confident that the Supreme Court will uphold it.

Mr. RIVKIN: Congress has spoken with perfect certainty on this issue. In fact, it's about as airtight of a language as I've ever seen. So I can't imagine that even the most unsympathetic justices would be able to construe this language as (unintelligible) activity.

SHAPIRO: Another part of this bill that might come before the courts is the section that prohibits lawsuits from people who say their rights were violated under the Geneva Conventions.

Law Professor Chesney says Congress can create, strike down and amend laws, but what Congress is doing here may be none of the above.

Prof. CHESNEY: If you characterize it instead as Congress not changing the law but simply saying, okay, the Geneva Conventions continue to bind us, but going forward we're changing their enforceability, at least some of the detainees are going to try to say that you can't do this.

SHAPIRO: It may take years for these issues to get resolved, and by that time a different president may be in office with a whole new set of policies for handling detainees.

Ari Shapiro, NPR News, Washington.

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MONTAGNE: If you'd like to examine the details of the legislative compromise on detainees, go to npr.org.

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