Compromise on Detainee Bill Leaves Much Unclear The deal on treatment and interrogation of terrorism suspects ends weeks of debate between the White House and three prominent Republicans, and all involved say they're satisfied. But legal experts are still parsing what the bill will actually do.
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Compromise on Detainee Bill Leaves Much Unclear

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Compromise on Detainee Bill Leaves Much Unclear

Compromise on Detainee Bill Leaves Much Unclear

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This is WEEKEND EDITION from NPR News. I'm Scott Simon.

After weeks of refusing to go along with White House proposals, three Republican senators finally reached a compromise this week on legislation that would let the president detain suspected terrorists and try them for war crimes.

Senators John McCain of Arizona, Lindsey Graham of South Carolina, and John Warner of Virginia say they're satisfied. So does the White House.

Legal experts are still parsing exactly what the bill would do. So far it's clear that war crime tribunals at Guantanamo will go forward. Evidence kept secret from the defendants generally will not be allowed at those trials. That was a major demand of the senators. Hearsay evidence will.

Now on the issue of the Geneva Conventions, which was the senators' other main demands, Congress will not dramatically rewrite the provisions that bar torture. But people who use coercive interrogation tactics will get some legal immunity.

NPR's Ari Shapiro is here to walk us through these and other features of the legislation. Ari, thanks very much for being with us.

ARI SHAPIRO: My pleasure.

SIMON: What kind of legal immunity?

SHAPIRO: Well, the law that is used to prosecute non-military people for things like torture is called the War Crimes Act. It's used to prosecute CIA interrogators. It could ostensibly be used to prosecute the president, the vice president, the defense secretary, and so on.

And under this bill, the War Crimes Act would be more narrowly defined, so that some of the things that would have been considered violations of the act before would not be under this legislation. And it would also be retroactive to 1997. This bill would go back so that anybody who had committed an act since 1997 that fell under the old definition of a violation of the War Crimes Act but not the new definition would more or less be off the hook.

SIMON: But for example, the people who were prosecuted at Abu Ghraib, prosecutions like that would continue unstinted.

SHAPIRO: Well, because they're in the military. And people who commit crimes in the military are prosecuted under the Uniform Code of Military Justice, which is not changed in this proposed legislation. This legislation just deals, in this section anyway, with the prosecution of civilians under the War Crimes Act.

SIMON: Detainees who believe that they've been mistreated, can they file lawsuits under this bill?

SHAPIRO: No, they can't, and that's something that has human rights groups really outraged. Last year, Congress passed a bill called the Detainee Treatment Act, and part of that bill denied Guantanamo detainees the right to file future lawsuits in court. But it didn't say anything about the lawsuits that were pending and it didn't say anything about detainees held in Iraq, Afghanistan or elsewhere.

This legislation would wipe out all the pending lawsuits, and it would also bar detainees held anywhere in a foreign country from filing lawsuits challenging their detention. Human rights groups says this is one of the most basic parts of the Constitution. It's called habeas corpus. It's the right to challenge your detention. They say that by taking that away from detainees, we're seriously undermining the Constitution.

And Senator Carl Levin of Michigan says he's going to introduce an amendment, hopefully, to change some of that.

SIMON: Do we know for certain now whether a certain course of CIA tactics that we have learned about over the past couple of years will now no longer be pursued?

SHAPIRO: We don't know for sure. People from the White House say they're not talking about specific interrogation tactics. One of the ones that's been talked about most is called waterboarding, which the CIA has reportedly used in these prisons. It make the detainee think that they're drowning.

And Senator Lindsey Graham, who is one of the moderate Republicans opposing the White House for the last couple of weeks, said of waterboarding - there's a quote he said - it is a technique that we need to let the world know we are no longer engaging in.

But when you look at the bill itself, it says the president can interpret certain aspects of the Geneva Convention, and when you look at the definition of the Geneva Conventions in here - Common Article 3 specifically, which prohibits torture - is very layered. And when you get down to the bottom of the layers, it's not entirely clear what constitutes what they call a grave violation of Geneva.

SIMON: Now, what do you mean by the phrase layered?

SHAPIRO: Well, for example, cruel, inhuman and degrading treatment is clearly prohibited in this legislation. But then you look at the definition of cruel, inhuman and degrading treatment, and the definition includes the phrase serious pain or suffering. So then you look at the definition of serious pain or suffering, and that definition refers to serious and non-transitory mental harm.

And so you've got this definition after definition after definition after definition, and when you get down to the very bottom, there's still question remaining whether waterboarding, stress positions, hypothermia and so on are permitted. And some legal experts are saying, yes, in fact I think they are permitted under this legislation.

SIMON: This is something is local police forces - must be saying - I don't know about waterboarding at local police forces - but they deal with this all the time, and that it's considered to be all right to deceive someone you're interrogating because that's transitory mental harm, arguably, but not the long-term damage.

SHAPIRO: That's right. And because, the argument goes, waterboarding only creates mental harm for a short period of time, and it doesn't create long lasting harms for years and years to come, some legal experts are saying, well, it might actually be allowed under this legislation.

SIMON: Doesn't seem to be a consensus on exactly what the bill does or doesn't do.

SHAPIRO: No, there does not seem to be. Not yet at any rate. It's funny, because you've got both members of Congress and the White House saying we clearly got exactly what we wanted. And legal experts from the outside are saying this is anything but clear. Georgetown Law Professor Marty Lederman called this deliberately obscure and obfuscatory legislation.

Many people trying to parse it, I think, would agree. The morning after the legislation came out, the human rights group Human Rights First said that interrogation tactics such as waterboarding would be clearly prohibited, while at the same time the ACLU was saying that this legislation is a clear get-out-of-jail-free card for the president and the CIA. So there really is no consensus yet.

SIMON: Now, it was just a couple of weeks ago the president in the Rose Garden was saying what we want is clarity here. We want greater clarity.

SHAPIRO: Right. And they're saying that they've gotten clarity, but then when we ask about specific tactics, such as waterboarding, hyperthermia, stress positions, they say, well, we don't want to talk about specifics. Everybody seems to be onboard with this. It's just not entirely clear to everyone exactly what Congress and the White House are onboard with.

SIMON: The legal immunity situation, though, seems to be clear. If, for example, the next administration wants to change some of these interpretations, this legislation would still apply.

SHAPIRO: That's right. Unless, in the meantime, a court overturns it. There are definitely going to be court challenges to some aspects of this bill, if not all. And it's anyone's guess what judges would say about this.

SIMON: NPR's Ari Shapiro, thanks very much.

SHAPIRO: My pleasure.

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