Republicans stand up to Bush? – No way Jose!


Richard Moore

Instead what we see is (1) the appearance of 'standing up', in an attempt to 
stem the tide of disaffected voters, and (2) in reality the increased 
legalization of torture.


Original source URL:

September 23, 2006
Detainee Deal Comes With Contradictions

The compromise reached on Thursday between Congressional Republicans and the 
White House on the interrogations and trials of terrorism suspects is, legal 
experts said yesterday, a series of interlocking paradoxes.

It would impose new legal standards that it forbids the courts to enforce.

It would guarantee terrorist masterminds charged with war crimes an array of 
procedural protections. But it would bar hundreds of minor figures and people 
who say they are innocent bystanders from access to the courts to challenge 
their potentially lifelong detentions.

And while there is substantial disagreement about just which harsh interrogation
techniques the compromise would prohibit, there is no dispute that it would 
allow military prosecutors to use statements that had been obtained under harsh 
techniques that are now banned.

The complex, technical and often ambiguous language in the 94-page measure was a
subject of debate, posturing and, perhaps, some wishful thinking yesterday. Each
side in the hard-fought negotiations ‹ the White House and the three opposing 
Republican senators ‹ declared victory.

And human rights groups simultaneously insisted that the new bill should be read
to forbid various tough antiterrorism tactics and cautioned that the Bush 
administration had been given too much power to make the rules.

Some longtime critics of the administration expressed satisfaction with aspects 
of the compromise. They hailed the three senators who negotiated it, Lindsey 
Graham of South Carolina, John McCain of Arizona and John W. Warner of Virginia,
as leaders who placed principle over politics in stopping the effort to redefine
a provision of the Geneva Conventions knows as Common Article 3.

That provision bars, among other practices, ³outrages upon personal dignity, in 
particular, humiliating and degrading treatment.²

³The McCain, Graham, Warner trio really fought back and prevented the 
administration from winning its effort to reinterpret Common Article 3,² said 
Jennifer Daskal, the United States advocacy director for Human Rights Watch.

The proposed law, at least if it is interpreted honestly, Ms. Daskal said, would
prohibit interrogation techniques like sleep deprivation, forced standing for 
long periods and extreme temperatures.

Others said that the negotiations were a sham and that an array of harsh 
techniques remained available.

³The only thing that was actually accomplished,² said Eric M. Freedman, a law 
professor at Hofstra University and the author of a book on habeas corpus, ³was 
that the politicians got to announce the existence of a compromise. But in fact,
most of the critical issues were not resolved.²

Martin S. Lederman, who teaches constitutional law at Georgetown, said the bill 
continued to allow the harsh treatment of detainees by the Central Intelligence 

³They appear to have negotiated a statutory definition of cruel treatment that 
doesn¹t cover the C.I.A. techniques,² Professor Lederman said. ³And they purport
to foreclose the ability of the courts to determine whether they satisfy the 
Geneva obligations.²

The bill would allow, and perhaps require, the president to issue regulations 
concerning ³the meaning and application of the Geneva Conventions,² and it calls
for them to be published in The Federal Register.

Legal experts differed about whether that bargain, trading power for 
transparency, was sound.

Changes to the procedures for the military commissions established to try 
terrorism suspects for war crimes also met with mixed responses. Revisions that 
would let defendants see the evidence against them were welcomed by military 
defense lawyers and human rights groups.

But some voiced concern that using statements obtained through coercion, even 
coercion forbidden by the McCain Amendment to Detainee Treatment Act of 2005, 
would still be allowed in many circumstances. So would be hearsay evidence, as 
well as a combination of the two.

³You create a situation,² Ms. Daskal said, ³in which someone could be convicted 
based on a second- or third-hand statement from a detainee during an abusive 

The issue that most engaged administration critics was the new bill¹s aggressive
and possibly constitutionally suspect efforts to keep the courts from hearing 
many detainees¹ challenges or claims based on the Geneva Conventions. Though 
people charged with war crimes would receive trials before military commissions 
that largely resemble courts-martial and criminal prosecutions, the 
administration has announced plans to use just a score of those.

About 430 people are being held at Guantánamo Bay, Cuba, and there is no 
guarantee that they will ever be tried. The legislation, unchanged by the 
compromise, would prohibit habeas corpus challenges to these indefinite 

³You¹re creating a system,² Ms. Daskal said, ³where Khalid Shaikh Mohammed,² 
called the mastermind of the Sept. 11, 2001, attacks, ³will have more rights 
than the low-level detainee who was sold into U.S. custody by bounty hunters.²

Indeed, the propriety of indefinite detentions at Guantánamo will continue to be
decided by combatant status review tribunals, or C.S.R.T.¹s. The revised rules 
for military commissions do nothing to alter the tribunals¹ unorthodox 

"The C.S.R.T. is the first time in U.S. history in which the lawfulness of a 
person¹s detention is based on evidence secured by torture that¹s not shared 
with the prisoner, that he has the burden to rebut and without the assistance of
counsel,² said Joseph Margulies, author of ³Guantánamo and the Abuse of 
Presidential Power² (Simon & Schuster, 2006).

A limited appeal from adverse determinations of these tribunals is permitted, 
but habeas corpus challenges are not. That means, Professor Freedman said, that 
³the feature of the bill that does the greatest amount of harm to the American 
legal system remains untouched.²

The compromise adds a wrinkle, prohibiting the very invocation of the Geneva 
Conventions in civil cases and habeas proceedings and, depending on how one 
reads an ambiguous passage, perhaps criminal cases, too.

The Senate Judiciary Committee will hold hearings on Monday on limiting 
detainees¹ habeas challenges. If Congress does not act, Professor Freedman said,
the courts may reject the habeas provisions in the law.

³An attempt to throw out of court many hundreds of pending cases that the 
Supreme Court has twice held have a right to be there,² he said, ³is not likely 
to be met with a favorable reaction in the Supreme Court.²

Copyright 2006 The New York Times Company

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