Detainee Legislation Driven by Court Decision

LIANE HANSEN, host:

The wrangling over detainee detention and abuse entered a new phase this week. When the White House and rebellious Republican senators worked out a compromise agreement, both sides pronounced satisfaction with the result. Yet this debate might not have taken place were it not for the Supreme Court ruling in Hamdan versus Rumsfeld earlier this year. That decision struck down the military commissions devised by the administration, and made it clear that the Geneva Conventions had been violated. The new legislation is intended to solve those problems.

Joining us by phone is Walter Dellinger who served as assistant attorney general and head of the Office of Legal Counsel in the Clinton administration.

Welcome to the show, sir.

Mr. WALTER DELLINGER (Former Assistant Attorney General): Thank you.

HANSEN: Do you think the compromise legislation sufficiently answers the Supreme Court's objections in terms of the detainee trials and upholding the Geneva Conventions?

Mr. DELLINGER: I think it answers the Court's big objection, which is that the president was acting on his own and in violation of existing statutes. In other words, the president has asserted unilateral authority - indeed, proceeded in secret - to decide that he could violate basically two acts of Congress that regulated the treatment of detainees and the nature of the trials. And the Court held that the president had to comply with acts of Congress.

That being said, the Congress has largely given the president what he wanted, and has done so in a way that in a sense forecloses the courts from effective future review of what the president does.

HANSEN: The president had wanted clarification of Common Article 3 of the Geneva Conventions that outlaws detainee torture and abuse. And the compromise legislation doesn't do that, but it does give the president authority to interpret certain elements of Common Article 3. What does that really mean in plain terms?

Mr. DELLINGER: I think what it means is, in plain terms, that the United States continues to maintain that it will comply with the Geneva Conventions but has - Congress has taken steps to ensure that no one can effectively enforce that. It does it in about three different ways.

First, it says that the president has the authority for the United States to interpret the meaning and application of the Geneva Conventions. So that if the president says we're in compliance, the act says that will be a final determination. And Congress can probably do that, because they amend the War Crimes Act, which was the act of Congress. It made the Geneva Conventions actually applicable as U.S. law, so they've given the president the authority to do that.

Secondly, they've actually amended the War Crimes Act itself, the 1990s legislation that made violation of the Geneva Convention a violation of U.S. law, to narrow the range of offenses.

But most importantly - in addition to giving the president the power to interpret the bill - has provisions that prohibit detainees from filing lawsuits. So that it says that - and really, the provisions that I think will cause the most concern by those who thought we need to bring this under the - sort of under the rule of law, is that - is it the act provides that no person held by the United States as a detainee can bring any lawsuit if they're held over - in an overseas location.

And it wipes out both all the pending lawsuits and any future lawsuits, and indeed says that no person may invoke the Geneva Conventions in any action to which the United States is a party.

So that it pretty much says it's up to the president to decide the meaning of this and tries in two different ways to prevent the courts from taking a second look at it.

HANSEN: It also includes terms that prevents detainees in U.S. custody from challenging the legality of their detention. Does this mean that they could be locked up forever with no recourse?

Mr. DELLINGER: Apparently so. It's quite striking. But what the act does is to provide some reasonably fair procedures for those who are actually brought to trial. It amends the speedy - but it takes away some of the rights that people would have in military trials generally. But it provides fair procedures. It even provides for some appellate review to the courts.

But for all the detainees who are not tried - and the bill gets rid of the speedy trial provisions - for all the detainees who are simply held in custody, they're forbidden from challenging either the fact of or the circumstances of their detention in court. So while the bill says at the end that the U.S. shall not engage in cruel, inhumane treatment, it goes as far as it can, I believe, to prevent anyone from actually being able to bring such a claim in court.

HANSEN: Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke University. He served as assistant attorney general and head of the Office of Legal Counsel in the Clinton administration. Thank you very much.

Prof. DELLINGER: Thank you.

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