Details of the Senate's Detainee Bill

The bill laying out how to handle terrorism detainees has undergone several changes since it was first introduced last week. Now that the legislation appears to be in its final form, Melissa Block talks with NPR's Ari Shapiro about what the bill says and what its implications would be.

Copyright © 2006 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

MELISSA BLOCK, host:

And for more detail on what is in that bill, we're joined by NPR's Ari Shapiro. And Ari, we heard reference in David Welna's piece there to enemy combatants and who is considered an enemy combatant. What exactly does the bill say?

ARI SHAPIRO: Well, there have been several changes to the bill in the last few days and one of the most significant deals with the definition of an enemy combatant. The bill now says people who purposefully and materially supported hostilities can be defined as an enemy combatant. Also people who have been determined through a combat status review tribunal at Guantanamo Bay. That's nothing new. But another change that is new is the bill now refers to "or another competent tribunal established under the authority of the president or the secretary of defense."

BLOCK: Now help us parse that language. What does that mean in practical terms?

SHAPIRO: Well, it sort of leaves the door open for the president or the secretary of defense to create a different system now with Congress's explicit blessing, you know, that we haven't seen yet. That we don't know what it might look like. It's a pretty broad power and the president says he needs this power to be able to try terrorists and bring them to justice.

Civil liberties groups are a little concerned about this power. For example, the ACLU said, you know, the language is vague enough that if it were a president with a different track record we might not be concerned but given this president's track record the ACLU is concerned.

Another realistic impact of the changed definition is that a phrase that referred to people outside the United States has been removed. So the law as now written would mean that any alien, whether or not in the U.S., could be determined to be an unlawful enemy combatant.

And that has immigration groups really concerned. They say, you know, imagine you're somebody who's been living in the U.S. for 30 years, married to an American citizen. You give money to an Islamic charity and the U.S. determines that that charity supported terrorism. That's material support. You can then be declared an unlawful enemy combatant, taken to a secret prison and, you know, potentially never heard from again, these groups say.

BLOCK: There's been a lot of concern expressed throughout this debate about the principle of habeas corpus. Can detainees challenge their detention, their infinite detention even, in the courts, and we just heard mention of the Arlen Specter amendment that was defeated today.

SHAPIRO: Right. That was today's big issue. The amendment was defeated on a 48 to 51 vote, as David Welna mentioned. And so this means that whether you're in the U.S. or not, you can not challenge your designation as an enemy combatant.

And if enacted, this has some really immediate practical implications. For example, there's a guy named Ali Almari who's a citizen of Qatar. He was studying at a graduate school in Illinois. He was picked up and he's been detained at a naval brig in North Carolina as an enemy combatant. His case has been working through the courts and under this law, that would now be cut off.

BLOCK: What kinds of limits does the legislation put on how detainees can be interrogated?

SHAPIRO: The language is a little bit vague and a lot of experts have been sort of parsing and deliberating about this. It says that grave breaches of the Geneva Conventions would be illegal. Cruel, inhuman, degrading treatment would be illegal. But when you get right down to it, it's not entirely clear that some of the most coercive CIA interrogation tactics would be barred under this legislation.

Dahlia Lithwick writes in the Slate magazine. She said one hardly needs a law degree to understand that in a controversy over detainee treatment between the executive and legislative branches, the trump will go to the guy who's holding the unnamed detainees in secret prisons.

So there is skepticism here that the coercive interrogation tactics the CIA engaged in are a thing of the past. But the president says these are the kinds of tactics that are necessary to get the kind of information that keeps Americans safe.

BLOCK: What about evidence that can be presented in court. This has been shifting somewhat in the language, too.

SHAPIRO: Yeah. The most significant shift on this point was about secret evidence. The first draft of this legislation said the defendant could examine and respond to evidence against him, and now the legislation lost the word examine. So it says he can respond to the evidence against him. It's not entirely clear how you can respond to evidence you've not been able to examine and that's undoubtedly an issue that defense lawyers will raise at the trial, but that's one tweak that's been made recently.

BLOCK: Are we inevitably looking at Supreme Court challenges to this bill the way it's written now?

SHAPIRO: Well, as we heard in David Welna's piece, Senator Arlen Specter certainly thinks so. There are going to be some court challenges, without question. Those will in all likelihood reach the Supreme Court. Whether the Supreme Court kicks it back to Congress as Specter predicted, we're not sure. Now that this program has Congress's blessing, which it didn't the last time, the program is certainly stronger than it was.

BLOCK: NPR's Ari Shapiro. Thanks very much.

SHAPIRO: You're welcome.

Copyright © 2006 NPR. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to NPR. This transcript is provided for personal, noncommercial use only, pursuant to our Terms of Use. Any other use requires NPR's prior permission. Visit our permissions page for further information.

NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.

Inside the Detainee Bill

Read the Bill Online

The Senate approved legislation Thursday that establishes military commissions to try terrorism suspects, and clarifies U.S. policy with regard to the Geneva Conventions — a treaty which defines international standards for the treatment of war prisoners.

The bill sets standards for CIA interrogators, but human-rights groups say the rules are complex and leave room for such harsh techniques as prolonged sleep deprivation. The legislation also denies detainees the right to challenge their imprisonment in court.

A version of the bill won House approval Wednesday, on a 253-168 vote. The legislation has undergone several days of modifications and additions from members of Congress and the White House. Here's the latest on what the bill says:

ON DETAINEE LEGAL RIGHTS

The Definition of 'Unlawful Enemy Combatant'

The bill expands the definition of unlawful enemy combatants to include people who have "purposefully and materially supported hostilities" and people who have been declared enemy combatants under Combat Status Review Tribunals, "or another competent tribunal established under the authority of the President or the Secretary of Defense." Under this new language, people in the United States who are not American citizens could be declared unlawful enemy combatants and held indefinitely without trial.

Habeas Corpus

The bill prohibits detainees held by the United States from filing lawsuits challenging their detention, known as habeas corpus pleadings. This wipes out both pending and future lawsuits, and it would apply to people picked up anywhere in the world, including the United States.

The provision is significant. Habeas corpus is an ancient protection that stems from English common law, and its use dates back to as early as the 12th century. In 1969, the Supreme Court called it "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Sen. Arlen Specter (R-PA) introduced an amendment to remove this part of the legislation. He argued that the ability to challenge one's detention is one of the most fundamental rights enshrined in the Constitution. The proposed amendment failed.

ON THE GENEVA CONVENTIONS

Coercive Interrogation Tactics

The bill prohibits "grave breaches" of Common Article 3 of the Geneva Conventions. That includes "cruel or inhuman treatment." But many legal analysts and government officials believe the definition of cruel or inhuman treatment as written in the bill does not encompass some of the severe interrogation tactics that the CIA has reportedly used against terrorism suspects. The bill also prohibits enemy combatants from filing lawsuits claiming a violation of their rights under the Geneva Conventions. That could make it difficult to hold accountable those who do engage in torture.

Presidential Power

The bill gives the president the power to "interpret the meaning and application of the Geneva Conventions." Critics fear this means that the president can unilaterally authorize interrogation techniques that many people would consider torture.

War Crimes Act

The 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.

ON MILITARY COMMISSIONS

Evidence Obtained Through Coercion

If an enemy combatant made a statement under coercion before Congress passed the Detainee Treatment Act in 2005, the evidence is admissible at a military tribunal in most cases. If the statements were made after Congress passed the 2005 ban on coercive interrogation tactics, the evidence is admissible only if a military judge finds 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."

Secret Evidence

The first draft of this legislation said that defendants could "examine and respond" to all of the evidence against them at a military tribunal. Now it says only that defendants can "respond" to all evidence. The full implications of this phrase aren't entirely clear. Defense lawyers will likely argue that defendants can't respond to evidence they haven't been able to examine.

Hearsay Evidence

Hearsay evidence is generally acceptable at military tribunals. A judge has to rule that the evidence is reliable and relevant to the trial.

Comments

 

Please keep your community civil. All comments must follow the NPR.org Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.