Long-Awaited Detainee Deal Short on Details

Republican leaders in the Senate and White House have reached a deal on handling terrorism suspects, but many elements of the bill remain unclear. The language surrounding acceptable interrogation methods is vague, leading to potential misunderstandings of what would be permitted.

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MICHELE NORRIS, host:

From the moment the compromise bill was announced, people have offered very different interpretations of what would be allowed concerning detainee treatment.

NPR's Ari Shapiro is here with us in the studio to help us sort it out. Welcome, Ari.

ARI SHAPIRO: Hi.

NORRIS: Which techniques are at issue here?

SHAPIRO: We're talking about techniques that the administration considers coercive but stopping just short of torture. These are some of the harsh interrogation techniques that were reportedly used at the CIA prison where these 14 high value terrorism suspects were held. We're talking about things like waterboarding, where a detainee is made to think he's drowning. Things like stress positions, where he may be made to stand or sit in an uncomfortable position for days, sleep deprivation, loud music, things like that that fall just short of torture.

NORRIS: And I take based on what we've heard that there are some people believe that the current proposal would prohibit those techniques.

SHAPIRO: That's right. The three moderate Republican senators who are primarily involved in working out this compromise, Senator Warner, Senator McCain and Senator Graham, all three seem to believe that this legislation that they've worked out would prohibit those coercive interrogation techniques.

And they've been making that case for the last few days. For example, yesterday here's what Senator John McCain of Arizona said on CBS' Face the Nation:

Senator JOHN McCAIN (Republican, Arizona): In concrete terms it could mean that waterboarding and other extreme measures such as extreme deprivation, sleep deprivation, hypothermia and others would be not allowed.

SHAPIRO: That's an important cut there because they don't usually talk about what is and is not allowed in such concrete terms. It shows that McCain is really trying to make the case that he got what he wanted, and there are outside groups that agree with him. For example the group Human Rights First looking at the legislation says yeah, we think this does not allow practices like waterboarding.

NORRIS: But Ari, it sounds like all parties in this compromise bill haven't necessarily embraced the same interpretation. Are there administration officials who say waterboarding is still allowed under this proposal?

SHAPIRO: Well, the administration officials often say they don't want to talk about specific interrogation techniques. But they've been very confident that the CIA program that they've been defending can go on as it has been going on for the last few years, which suggests that they do believe these coercive interrogation tactics can continue.

For example, ABC News published an e-mail that CIA Director Michael Hayden wrote to CIA employees, and the e-mail said in part, “if this language becomes law the Congress will have given us the clarity and the support that we need to move forward with the detention and interrogation program that allows us to continue to defend the homeland, attack al-Qaida and protect American and allied lives.”

So does that include waterboarding? Well, the ACLU and other groups seem to think that perhaps it does.

NORRIS: Ari, you've been knee deep in this for some time now. What's your take when you read the specific language of this bill? Is there an explicit prohibition against these techniques?

SHAPIRO: Explicit would not be the word to describe the prohibition against these techniques, if there is one in there. It's really like the layers of an onion. You have grave violations of the Geneva Conventions clearly prohibited. And then when you peel that back, grave violations include cruel, inhuman and degrading treatment. So peel back that layer and it includes serious physical or mental pain. Underneath that you've got the definition including the phrase non-transitory mental suffering.

So you come to the question well, is waterboarding non-transitory? Some have said that as harmful as waterboarding might be, its effects don't last a very long time and so this multi-layer definition may actually allow things like waterboarding.

NORRIS: So if Director Hayden was looking for clarity at the end of the day, how will CIA interrogators know what they can and cannot do?

SHAPIRO: Well, the legislation will pass in some form, either this form or an amended form, or perhaps it won't pass at all. But if it does, then the General Counsel of the CIA will write a legal memo explaining what they believe is okay.

And then some people are saying that at the end of the day this question of what is and is not permissible may actually be moot because it sort depends on accountability and the legislation as currently written would prohibit detainees from filing lawsuits challenging their treatment under the Geneva conventions.

Some have said well, if that language stays in the bill, and it's upheld, then with no court accountability, there really is no way to challenge people who perhaps may have been interrogated under techniques that are not allowed in the legislation.

NORRIS: Thank you, Ari.

SHAPIRO: You're welcome.

NORRIS: That was NPR's Ari Shapiro.

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