The NewStandard ceased publishing on April 27, 2007.

Critics Consider Interrogation 'Reform' a Step Backward

by Michelle Chen

While most attention focused on supposedly moderate voices among Senate Republicans, the GOP debate over terror-war detainee policy nixed rights and empowered the administration.

Oct. 3, 2006 – Congress has passed legislation sanctioning some of the Bush administration’s most controversial policies for handling military captives, but the move has not quelled the political battle over detainee treatment. Although supporters tout the bill as crucial for the prosecution of war criminals, advocates for detainees say it will further shred basic rights in favor of military impunity.

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The Military Commissions Act, now bound for the president’s desk after a Senate vote last week, authorizes the creation of "military commissions," based on the White House model for special military courts to try non-citizen detainees. The Secretary of Defense would have broad control over the trial process, including the appointment of judges and the authority to allow evidence obtained through coercion.

The new legislation’s scope could extend beyond conventional portrayals of "enemies" in the so-called "war on terror." Under the bill, the category of "unlawful enemy combatant" encompasses people engaged in combat, as well as anyone who has "purposefully and materially supported hostilities against the United States." Such support could include financial help or other indirect aid to a terrorism suspect. The definition does not refer specifically to citizenship, raising concerns that the government would have unprecedented legal traction to sweep US citizens into arbitrary detention.

The bill would bar access to US courts to challenge the legality of their imprisonment.

For all detainees, including those not formally charged through the commissions, the bill would bar access to US courts to challenge the legality of their imprisonment on the basis of a constitutional guarantee known as habeas corpus.

The bill also sets standards for forceful interrogation tactics based partially on the Geneva Conventions, international humanitarian protections that apply to armed conflict.

The bill explicitly bans "grave" violations like mutilation and murder. But it empowers the White House to rule on the legality of many controversial interrogation tactics, which may include simulated drowning and sleep deprivation.

The bill further diminishes the government’s accountability to the same human-rights statutes it purports to uphold. By blocking Geneva Conventions standards from being invoked in US court proceedings, the legislation renders government personnel and officials immune from legal liability for violating the Conventions.

The Military Commissions Act expands upon the Detainee Treatment Act of 2005, which established restrictions and guidelines for prisoners at the US military camp in Guantánamo Bay, Cuba. The new legislation’s curtailment of legal rights is farther reaching, and applies to detentions in the terror war anywhere in the world.

The Bush administration claims the bill will ensure the proper prosecution of terrorists, but human-rights groups see it as a step backward in their efforts to defend federal and international legal protections for detainees.

Critics say the bill could grant the government unprecedented legal traction to sweep US citizens as well as non-citizens into arbitrary detention.

Gabor Rona, international legal director with the advocacy organization Human Rights First, told The NewStandard lawmakers had tried "to put the nail in the coffin" of the legal debate over detainees’ rights. The bill, he said, could be read to give the president "almost untrammeled discretion to determine what our obligations will be under most of the Geneva Conventions provisions."

An irony of the bill, say critics, is that with habeas rights gutted, only a detainee who has been convicted by a commission may appeal to US civilian courts. Detainees who have never even been formally charged, by contrast, could languish in indefinite captivity without a civilian court hearing.

"Simply by the president pointing a finger at you and saying ‘You are an enemy combatant,’" Rona said, "you would then lose any and all constitutional rights that you have to challenge your detention, to bring complaints about your treatment in detention."

Rona added, however, that the courts could read the law’s provisions to give less power to the president, reflecting more limited interpretations expressed by lawmakers who negotiated the bill, including so-called "dissident" Republican senators John McCain (Arizona), Lindsey Graham (South Carolina) and John Warner (Virginia).

The senators crafted a compromise with the White House as a response to a June Supreme Court decision in Hamdan v. Rumsfeld, which ruled that existing federal law did not sanction the commissions that President Bush sought to implement.

In a statement following the Senate vote, Majority Leader Bill Frist (R–Tennessee) declared that the bill would protect Americans by upholding the administration’s power to continue gathering intelligence and "bringing these terrorists to justice."

But Mark Agrast, a senior fellow with the liberal think tank Center for American Progress, said the sweeping legislation is "likelier to deny justice to the innocent than to assure justice for the guilty."

The Center for Constitutional Rights, which provides legal counsel to several hundred detainees at Guantánamo Bay, plans to challenge the bill on constitutional grounds. Wells Dixon, an attorney with the Center, told TNS the habeas-stripping provisions of the bill, which apply retroactively, may effectively kill detainee lawsuits that are now pending.

If the legislation is enacted in its current form, he predicted, "what this means is lifelong detention for our clients, essentially."

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The NewStandard ceased publishing on April 27, 2007.

Michelle Chen is a staff journalist.

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