Detainee Legislation Gives President New Powers

The new detainee-rights legislation passed by the Senate gives the President new authority in dealing with detainees suspected in the war on terrorism.

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STEVE INSKEEP, host:

It's MORNING EDITION from NPR News. I'm Steve Inskeep.

LYNN NEARY:

And I'm Lynn Neary. The Senate last night passed legislation that grants the president new authority over the interrogation and prosecution of suspects in the war on terror. On a vote of 65 to 34, the Senate gave President Bush much of what he hoped for. It allows the White House to continue to operate CIA prisons overseas, but it places some limitations on how agents can interrogate detainees.

NPR's Ari Shapiro is here to explain. Good to have you with us.

ARI SHAPIRO: Thanks.

NEARY: Now there's three major parts of this legislation. So let's start with interrogation tactics. What's acceptable now under the law?

SHAPIRO: Well, some parts of it are pretty explicit. For example, murder, torture, rape and so on are not acceptable under the law. These are called grave breaches of the Geneva Conventions. There are other things like cruel, inhuman and degrading treatment where the definition is a little more vague. And some civil liberties groups have been concerned that under this definition the president could authorize things that some people would consider torture.

The defenders of the legislation, for example, Senator John McCain of Arizona, say there's part of this legislation that requires the president to put any of his interpretations of the Geneva Conventions in the public record. So if the president were to authorize interrogation techniques that people would consider torture, McCain says we'll know about it and be able to respond accordingly.

But there's also some question of accountability in this legislation. The War Crimes Act, which is used to prosecute civilians who carry out acts considered war crimes under this law, is narrowed under this new legislation. And so people who have committed offenses that might have been considered violations of the War Crimes Act all the way back to 1997 are now immune from prosecution. So there's some question in here about if people are tortured, if people are interrogated using coercive interrogation tactics, it's unclear what kind of accountability there could be.

NEARY: Now the legislation also lays out rules for war crimes trials at Guantanamo Bay.

SHAPIRO: Yes, it talks about whether secret evidence will be allowed, whether hearsay evidence will be allowed, whether evidence obtained through coercion will be allowed. And I don't want to say that this part of the legislation is insignificant, but relative to the other parts of legislation, it's going to affect a small number of people.

Roughly a dozen people at Guantanamo Bay have now been charged with war crimes and will be tried in these new military commissions. But remember, there are about 450 people total at Guantanamo Bay. The vast majority of those have not been charged with war crimes and would not be tried under these new military commissions. So while the rules are important to the people who will be tried, some of these high-profile detainees such as Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and Abu Zubaida, a high-level al-Qaida figure, those rules will not apply to the vast majority of people at Guantanamo who have not been charged with war crimes.

NEARY: How are people's access to courts affected by the legislation?

SHAPIRO: Well, this is the most dramatic part of the legislation, and it's the part that would affect the largest number of people. The legislation restricts what's known as habeas corpus, which is the right to challenge your detention in court. This was the subject of heated debate yesterday. Senator Arlen Specter, Republican from Pennsylvania, introduced an amendment that would have allowed people to challenge their detention in court. He's afraid that if habeas corpus is denied, the Supreme Court will overturn this legislation, say it's unconstitutional and kick it back to Congress.

As it is, Specter's amendment failed, which means that the 450 people at Guantanamo Bay, people held at CIA prisons overseas, other enemy combatants will not be able to challenge their detention in court.

NEARY: Well, do enemy combatants have any access to courts?

SHAPIRO: There's one very small avenue, which is for the people who are tried in the military commissions. They can appeal their convictions, but only on a narrow ground. They can't introduce new evidence or challenge the facts. They can only challenge the structure of the commissions that brought them there in the first place.

NEARY: So these rules apply to unlawful enemy combatants. But who determines whether someone's an enemy combatant in the first place?

SHAPIRO: This was another dramatic recent change in the legislation, which is that enemy combatants can now be anyone in the U.S. who's a non-citizen. Before, the legislation had the phrase "outside of the United States." That phrase was removed in the last few days. So immigrants-rights groups are now very concerned that some of the many people who have lived here for decades legally may be declared unlawful enemy combatants, sent to prison and be denied the right to appeal their detention.

The law also says that anyone who provided material support to terrorist groups, such as money, could be considered an enemy combatant. And it leaves an opening for enemy combatants to be declared through another competent tribunal established under the authority of the president or the secretary of defense.

So it's sort of a broad power the president has been given and we have yet to see how he may use that.

NEARY: NPR's justice reporter Ari Shapiro. Thanks so much for being with us, Ari.

SHAPIRO: You're welcome.

NEARY: And you can read more analysis of the legislation at npr.org.

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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.

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