Details of the Senate's Detainee Bill
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.