With Interrogation Rules Set, U.S. Moves Ahead

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Military commissions are far from new, even in the war against terrorism. Not long after the Sept. 11, 2001, attacks and the invasion of Afghanistan, U.S. authorities started taking prisoners and looking for a way to handle their cases.

MICHELE NORRIS, host:

It was action by the Supreme Court back in June that led to this new legislation. The high court ruled against the trial plans the Bush administration had laid down for terror suspects in part because they were entirely the creation of the executive branch.

NPR Pentagon correspondent John Hendren covered those first trials, and he's here to talk about them and the new ones to come. Hello, John.

JOHN HENDREN: Hello.

NORRIS: First, remind us about the first commission proceedings back in August of 2004.

HENDREN: Yes. I was at those at Guantanamo and I think it's fair to say objectively that it would have been a comedy of errors had it not been such a serious subject. So many things went wrong. These were proceedings that were designed to be speedy and efficient. And in the end, they have ended up being neither.

The translation broke down repeatedly. At one point, one of the detainees blurted halfway through a confession and the court finally shut him down. He had already fired his lawyer, so there was a lot confusion over the rules. And that was exacerbated by the fact that there was no video or photo or even audio recording evidence of those proceedings.

Reporters were allowed to come in and just carry a pen and a pad. So unlike the Nuremberg trials, there was really very little scrutiny. There were a few people that were allowed in from international organizations like the ABA and Amnesty International.

And in the end, those people were heavily critical of the way those proceedings went. And in the first one, three of the panelists were disqualified. Later on, one of them acknowledged that he didn't know what the Geneva Conventions were. This is the primary body of international law, theoretically, that they were using to determine some of these cases.

NORRIS: And in those proceedings what was the role of the military as opposed to the CIA or other agencies of the U.S. government?

HENDREN: Well, the military handles most of the 14,000 or so people in U.S. military custody. There is a small number of people that have been in CIA custody. And President Bush had recently transferred 14 people who were in CIA custody in what up until then had been secret prisons to Guantanamo.

The military, by contrast, is bound by stricter rules. They have the Army Field Manual, which has - lays out specific treatments that are barred, including mock drowning and things like that, sleep deprivation, food deprivation. So they are really a little stricter regimen.

NORRIS: And in looking back at those proceedings, remind us, what have Democrats and civil liberties groups had to say about that system?

HENDREN: They have been very critical of it. I would say civil liberty groups in particular. And they are very unhappy with this law, the one that the president signed today. Amnesty International said we are not giving up; we're fighting back and we're fighting back hard.

The ACLU Director Anthony Romero called it one of the worst civil liberty measures ever enacted in American history, and that kind of echoes what House Democratic leader Nancy Pelosi said. She says because it allows the president to interpret the Geneva Conventions through executive order, it invites other countries to do the same. And therefore, she argues that it endangers U.S. troops.

NORRIS: And do we now know that these military commissions go forward, or will there be more challenges? And if they do, what are the lessons learned that might be applied in this next round?

HENDREN: Well, I think it's very likely that you're not only going to see challenges but that it would at least people would try to take it to the U.S. Supreme Court. Whether the court takes it up, that remains to be seen. But critics could argue, for example, that allowing the president to interpret international law is itself a violation of international law.

It also - this new law allows the denial of habeas corpus, so a detainee cannot go to the courts theoretically and it require reasons for his detention. That's another thing that could be challenged under international law. And I've talked to a lawyer who specialized in this just a moment ago and he said, rest assured, there will be challenges.

NORRIS: Thank you, John.

HENDREN: Thank you, Michele.

NORRIS: That's NPR's John Hendren.

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