Both the U.S. Senate and the House of Representatives have approved controversial new legislation proposed by President Bush on the treatment and trials of terror suspects in U.S. custody. Following ten hours of debate, the Senate voted Thursday 65-34 in favor of the measure. The House had earlier approved a similar bill 253 to 168. Mr. Bush had urged final action on the measure before mid-term elections on November 7, and he's expected to sign it into law by week's end.
The debate began in June, after the U.S. Supreme Court struck down as unconstitutional President Bush's plan for military tribunals to try suspected terrorists and those deemed unlawful combatants -- for example, the approximately 450 prisoners held in Guantanamo Bay, Cuba. Mr. Bush responded with new legislation, asking Congress to approve military tribunals and also to "clarify" what tactics U.S. interrogators may lawfully use under the Geneva Conventions to induce suspects to talk.
"Information we get from these detainees is corroborated by intelligence we have received from other sources, and together this intelligence has helped us connect the dots and stop attacks before they occur," said Mr. Bush.
Brian Walsh, a legal expert at the conservative Heritage Foundation, agrees that what Mr. Bush calls "tough" interrogation tactics are necessary:
"We're put in a position of having to make really difficult decisions about what is okay and what is not okay, because we are dealing with combatants who have no concern for the laws of war, they have no concerns for the lives of citizens, for civilians, they're not concerned whether it's children, so there are no boundaries for the way they want to conduct this war.” Mr. Walsh said. “So, we can't go back to just Geneva standards that would apply to normal combatants, where you just ask them for their name, rank and serial number. Because we'd really be handicapping ourselves in a way that would not allow us to prosecute the war which is primarily a war of intelligence, so we need to know how they're planning and conducting the war."
But the president's demand to clarify the Geneva Convention's ban on torture met strong resistance from several leading Republicans, including Senator John McCain, a former prisoner of war in Vietnam. Opponents argued that setting guidelines would weaken the Geneva Conventions -- and that torturous tactics produce false information. The White House agreed to a compromise bill that explicitly forbids certain acts, such as murder or sexual assault, but gives the president sole authority to interpret other aspects of the Geneva Conventions.
Senator McCain later said he believes the final bill does forbid CIA interrogators from using very harsh methods, such as simulated drowning, induced hypothermia, or making prisoners stand for 40 or more hours. Human rights groups and other critics, however, say the legislation does still allow such techniques, which they say are torture banned by the Geneva Conventions.
As co-counsel with the Center for Constitutional Rights, Anant Raut's law firm represents several Guantanamo detainees. "The Bush administration internally has a very narrow definition of torture, so they don't consider what much of the rest of the world would consider torture to actually be torture," he said in an interview.
On September 6, Mr. Bush also announced the transfer of 14 of the most high-profile terror suspects in U.S. custody to Guantanamo, including the man believed to be the chief planner of the September 11 attacks.
"I am announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin-Al Shibh and eleven other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay," the president said.
Under the new legislation, those 14 top suspects will be tried by U.S. military tribunals that can use coercively obtained evidence and hearsay, if a judge deems the evidence reliable, and if it was obtained before a 2005 U.S. law banning cruel, inhuman or degrading treatment. Defendants will be represented by military lawyers, and will have access to summaries of classified evidence.
The great majority of Guantanamo inmates, however, have been held as long as five years, and have not been charged with any crime. The new legislation strips such prisoners of any right to challenge their continued detention – or their treatment – before an independent court. The bill also strips U.S. courts of jurisdiction over detainees, many of whom, says Anant Raut, were never combatants, but were mistakenly rounded up.
"Even former CIA interrogators and former commanders of Guantanamo have admitted they got the wrong people," said Raut. "To understand how these individuals got to Guantanamo, you have to realize that when the U.S. went into Afghanistan and Pakistan, they distributed leaflets that offered these $5,000 bounties for any ‘terrorists’ who were turned over to them. So, of course, there was this financial incentive to just turn in anybody and accuse them of being a terrorist."
The stripping of the right to challenge detention and treatment would also apply to an estimated 14,000 people being held in secret U.S. prisons abroad, whose existence Mr. Bush first acknowledged in early September. Brian Walsh of the Heritage Foundation defends the current system, and points out that each prisoner's status is periodically reviewed by military officials.
"We're bending over backwards in many ways to try to make sure these things don't happen. We're never going to fashion a perfect system, there may be individual injustices which occur against them. But that's a consequence of having an enemy who wants to kill you. If Americans feel the threat is not significant enough or if they are willing to let these people go, or give them substantial rights that tie up our ability to interrogate, that's something for the American people to decide," said Walsh.
Opponents say the legislation legalizes tyranny.
"The U.S. for the longest time has been this example for the rest of the world to follow,” said Raut. “And here we are now sending people to secret prisons to be tortured and locking people up for years at a time without any sort of crimes [charged] against them. I think now in the U.S., again in its overzealous attempt to combat this very real threat, is losing touch with all the values that have made this country great over the years, and turning into this state where the executive no longer feels it has to answer to the other branches of government."
Passage of the detainee bill before the election was a top priority for Republicans, who plan to attack Democrats for opposing it in their campaigns. Opponents charged the bill was designed for short-term political use, and predict the Supreme Court will strike it down.