U.S. Detention Policy Remains Cloudy

U.S. detention and interrogation policy evolved in 2006 as the Supreme Court ruled in June on the Hamdan case, and Congress passed legislation in the fall. But many issues surrounding U.S. policy remain unresolved.

RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVE INSKEEP, host:

And I'm Steve Inskeep.

Half a year after the Supreme Court ruled on detainees it is still not clear what the United States will do with its prisoners on the war on terror. Hundreds of detainees remain at the Guantanamo Bay naval base in Cuba. And in a moment we'll report on the legal proceedings or releases that may be expected in the year ahead. We begin with the way the landscape has changed since June. That's when the Supreme Court decided its most controversial case of the term, Hamdan versus Rumsfeld.

NPR's Ari Shapiro covered the debate and the legislation that followed. He's here to give us an overview. And Ari, what did that decision do?

ARI SHAPIRO: It basically got Congress involved in the game. The decision said the president could not unilaterally create this system to detain and try detainees. Congress had to play a role in it. And so, it set this process in motion that involved both the legislative and the executive branch in this debate.

INSKEEP: And what was the president's position?

SHAPIRO: Well, he held this dramatic press conference in August where he basically announced that the CIA had been running these secret prisons overseas, where he used these harsh interrogation tactics that he said were crucial to prosecuting and investigating acts of terrorism. Here's how the president put it.

President GEORGE W. BUSH: I cannot describe the specific methods used. I think you understand why. If I did, it would help the terrorists learn how to resist questioning and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary.

SHAPIRO: And on the subject the detainee treatment the same day the president made that announcement, the Pentagon released its new manual describing acceptable Army interrogation techniques. And that manual basically outlawed all of the harsh tactics that the president was saying the CIA needs and are necessary for preventing terrorism.

INSKEEP: So you have the president beginning with the assertion that he, or people who work for him, can do what they think is necessary without reference to anybody else. The Supreme Court said, wait a minute, you've got to check with us, and you really ought to check with Congress. And then how did Congress respond?

SHAPIRO: Well, a lot of members of the president's party were on board. But three important Republican senators were not - these were three guys with a lot of military credibility. It was senators Lindsey Graham, John McCain, and John Warner. They held the line. They said they were not going to allow coercive interrogation tactics. They were not going to allow the legislation that the president wanted. But then after a week or two of this very heated debate they suddenly reached a compromise.

INSKEEP: Which was?

SHAPIRO: Well, in the end, along the lines of detainee treatment anyway, the compromise gave the president a lot of what he wanted. It let him set the definitions of the Geneva Conventions in many ways, and it also said that detainees could not go to court to claim that their rights under the Geneva Conventions had been violated, which basically means that even if somebody was tortured, even if somebody was interrogated using coercive tactics that would be illegal, they had no way to bring that claim in court.

Before the legislation passed, CIA director Michael Hayden reportedly wrote an e-mail saying the legislation provided, and this is a quote, “the clarity and 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 at least the CIA felt as though this was the go ahead that they were looking for.

INSKEEP: Let me ask some simple questions that may be difficult to answer about where the law then stands now. Can the United States grab someone anywhere in the world and hold them indefinitely as long as the president feels it's in the national security interest to do so?

SHAPIRO: Yes. There are clear rules set out for the people who are charged with war crimes, but many of the hundreds of people at Guantanamo Bay have not been charged with war crimes. And according to current law, they could be held there more or less indefinitely.

INSKEEP: And does the law say that the United States can torture someone if the president feels it's in the national security interest?

SHAPIRO: The president will say, and has said again and again, that the United States does not allow torture. The question is for some of these tactics like water boarding, where a detainee may feel as though he's being made to drown, or hypothermia or sleeping deprivation, these other things that in some cases may not be defined as torture by the people who are actually doing it. But if you ask the people who have experienced these, they will say yeah, it's absolutely torture. Those, it's a little more unclear.

INSKEEP: As a reporter who has covered this all year, do you feel that the issue is better defined than it was a few months ago?

SHAPIRO: No, and I think that's part of the point. It's because of this murkiness. You know, there was one law professor who referred to this as deliberately obscure and obfuscatory legislation. That this is legislation that includes gray area, that includes room for definition, that includes stuff that's in the dark. So we don't necessarily know exactly what's going on. But because Congress is now on board with whatever that is, the president is in a stronger position than he was when Congress had no role in the decision-making.

INSKEEP: NPR's Ari Shapiro. Good to talk with you.

SHAPIRO: My pleasure.

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