September 23, 2006


On Rough Treatment, a Rough Accord (R. Jeffrey Smith, September 23, 2006, Washington Post)

Draft legislation to create a new system of military courts for terrorism suspects would allow prosecutors to introduce at future trials confessions that were obtained through "cruel, unusual, or inhumane" interrogations by the CIA or the military before 2005, but not afterward.

The legislation would also allow defense attorneys to challenge the use of hearsay information obtained through coercive interrogations in distant countries only if they can prove it is unreliable, a daunting task if the information consists of written statements from people the lawyers have no right to confront in court.

These complex provisions reflect some of the last-minute changes to broad legislation drafted by the White House and Republican lawmakers to establish a unique set of rules for detaining, interrogating and trying foreigners believed to be involved in hostilities against the United States.

The bill is designed to confer Congress's approval for the first extrajudicial U.S. trials of non-soldiers since World War II. Many of its provisions were put in to ensure that the rough detention and interrogation policies adopted by the Bush administration in 2001 and 2002 -- and ruled illegal in June by the Supreme Court -- may continue undisturbed. [...]

The bill is complex partly because negotiations were rushed, following a timetable set by President Bush. The White House wants Congress to pass the legislation before adjourning at the end of next week, expecting Democrats to withhold challenges to its most controversial provisions in the pre-election period for fear of being portrayed as soft on terrorism.

But the language is also opaque because its chief objective -- the legitimization of irregular interrogations by the CIA -- is a topic shrouded in official secrecy.

"As you know, specific techniques are classified," White House national security adviser Stephen J. Hadley said Thursday evening when he was asked which interrogation techniques the law sanctions. "This whole effort is to get a legal framework supported by the Congress" without letting terrorists know exactly what they will confront after capture, Hadley said. But he added that the draft language meets the CIA's needs.

From the outset, the challenge for the bill's Republican authors was to fit the government's desire for rough treatment and long detentions of terrorism suspects into a web of domestic and international rules and laws requiring fair trials and humane treatment for those held in captivity anywhere. These include the 10-year-old U.S. War Crimes Act, and the 50-year old Geneva Conventions.

Critics said yesterday that the bill's language abuses both of these, as well as the U.S. Constitution.

Detainee Deal Comes With Contradictions (ADAM LIPTAK, 9/23/06, NY Times)
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.

You muddy the waters until everyone thinks they won...except the Democrats, GOP Upbeat on Terror-Trial Bill (Charles Babington and Jonathan Weisman, September 23, 2006, Washington Post)
The House response all but settles an intraparty squabble and puts congressional Democrats in a difficult spot six weeks before elections in which they hope to wrest many House and Senate seats from the GOP. Some of the Democrats' liberal constituents dislike the bill, viewing it as a green light for President Bush to resume a CIA policy of interrogating foreign terrorism suspects with harsh techniques that some critics consider torture. But to oppose the compromise, which Sen. John McCain (R-Ariz.) has embraced, would subject them to charges of being soft on terrorism, several analysts said.

Many Democrats would undoubtedly like to change the bill, "but probably those in competitive races will just have to stay behind McCain," said political scientist Bruce Cain, director of the Institute of Governmental Studies at the University of California at Berkeley. A House Democratic leadership aide, who spoke on the condition of anonymity to discuss political strategy, said: "We had really hoped the White House had caved, but it's looking more and more like the senators caved."

'Maverick' GOP Senators Cave to Torture President (Cenk Uygur, September 23, 2006,

Wow, what mavericks! Those courageous, rebel Republican senators are at it again. They showed Bush a thing or two. Now, he wants be able to maim, rape and mutilate detainees. That ought to show him.

On the torture issue, the senators basically pretended to get a concession when the president said he would not reinterpret the Geneva Conventions ... when it comes to "grave breaches." But anything other than a grave breach the president has free reign to interpret and reinterpret any damn way he pleases.

First, let's go over what the "grave breaches" are: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, rape, causing serious bodily injury, and sexual assault or abuse, and taking hostages.

Great, we won't be doing biological experiments on the detainees anymore. Since cruel and inhuman treatment's definition is not spelled out, this leaves us exactly where we were before. The president can order waterboarding, sleep deprivation, extreme temperatures, physical abuse, etc., etc. It's all cool as long as no one is getting raped or mutilated. Are we not merciful?

In the end, what did the brave maverick Republican senators get on the torture issue? Bupkus!

Critics say bill on detainee interrogation will not prevent torture (Margaret Talev and Greg Gordon, 9/23/06, McClatchy Newspapers)
Several Democrats and civil-rights advocates charged Friday that a Republican compromise over the treatment of terrorism suspects leaves the door open for torture and abuse, while stripping captives of a basic right to a court appeal.

"This is a bill that's essentially going to continue to allow coercive interrogations," said Michael Ratner, president of the Center for Constitutional Rights, which has represented about 500 detainees, many of them held for more than four years at Guantánamo Bay, Cuba.

"I find it just shameful as a human-rights lawyer who's spent my life suing every dictator in the world over this kind of stuff."

Some military defense lawyers also assailed the compromise, contending the proposed rules would prevent them from learning whether evidence used against their clients was obtained through coercion or torture.

"It is worse than the system that was in place before," said Marine Corps Maj. Michael Mori, a military defense lawyer.

Posted by Orrin Judd at September 23, 2006 8:25 AM

Put up or shut up time for congressional Democrats, and I'm sure Bill Frist would be perfectly willing to call the Senate back into session in the run-up to the Nov. 7 elections if the Democrats really want to argue John McCain has just flushed away the civil rights of the Gitmo detainees by caving into Bush.

Posted by: John at September 23, 2006 11:27 AM

Caught a few minutes of Washington Week (the one on PBS moderated by Gwen Awful). All the liberal columnists of course proclaimed that this issue was going to destroy the GOP in the November elections. It is hard to understand how out of touch these supposed intellectual newspeople are.

Posted by: AWW at September 23, 2006 11:44 AM

Oh to be young and an active duty, field-grade Jag again!

I would like to point out a problem buried within this discussion--that of the unreliability of "evidence" obtained through the infliction of stress.

It is necessary to understand the distinctions among different classes of proffered evidence the law may find to be inadmissble or excludable.

Uncorroborated evidence obtained under physical or extreme mental duress is unreliable. We should forebear to admit it because we are not reasonably certain of its truthfullness.

This is not the same an an exclusionary rule, whereby we exclude otherwise reliable evidence in order to deter some investigator misconduct.
It is more like a rule of competence, as when we decline to admit a non-driver's estimate of the speed of a motor vehicle because he doesn't know what he's talking about.

The distinction is important, because in the first instance we go on to exclude evidence derived from the investigator misconduct, the "fruit of the poisonous tree" so doctrine mangled by television dramas, in the second, we have no problem with competent evidence derived from the coercively obtained intelligence, since it is only the coerced matter which is unreliable.

The rule for war crimes tribunals should be to admit any evidence of sufficient reliability to give the tribunal a reasonable certainty as to the guilt or innocence of the accused. I have no problem with stringing up terrorists with a sign about their necks reading, "We are partisans and have shot at American soldiers,*" but for the sake of our own self-respect, if nothing else, we need to be reasonably sure of their guilt.
*A photo in one of my WWII picture books shown a few guerillas being hanged as war criminals with such a sign in German. If the prisoners had been fighting as unlawful combatants, the Germans were within their rights to hang them. This is the Geneva Convention Protocol I issue, regarding the extension of privileged belligerency to anyone killing Jews or Americans, whether or not they fight lawfully.

Posted by: Lou Gots at September 23, 2006 12:07 PM

Torture is useful for obtaining intelligence, not confessions.

Posted by: oj at September 23, 2006 12:24 PM

That's the distinction. We don't want to admit the coerced out-of-court declaration because it very well may not be true, and we don't want to hang people on unreliable evidence. If such declarations lead us to credible evidence, it's no sweat.

Posted by: Lou Gots at September 23, 2006 2:19 PM

There is also a rather serious Separation of Powers issue here. The Treaty Power of the President is not something Congress has the power to abrogate. So, is any congresional "definition" of a provision within the Geneva Conventions (a Treaty) binding on the Executive?

PS My gut tells me that the pathetically vague wording of McCain's definition gives the answer away.

Posted by: Pepys at September 23, 2006 4:22 PM

"I find it just shameful as a human-rights lawyer who's spent my life suing every dictator in the world over this kind of stuff." How many cases has the lawyer won against the dictators? How many dissidents has he freed?

Just like 2002's vote for the Iraq war. The Democrats, unprincipled as they are, have to cave. If they had integrity, they would ignore the poll, and voted their conscience. Alas, their goal is to stay in office, thus just before an election cycle, Bush makes them vote for the War, for the Patriot Act, and for the Military Tribunal. The leftists should be glad that Bush is as dumb as a log, else they would really have it.

Posted by: ic at September 23, 2006 4:36 PM

Lou: Are the public statements of the JAG lawyers like Major Mori ok under military law? He and others (Hamden's lawyer in particular) strike me as highly disrespectful of the President.

Posted by: Bob at September 23, 2006 5:06 PM

Bob: I haven't seen those statements. My shoot-from-the-hip, Fingerspitzengefuhl, answer is that they do not fall within the "Contempt of Officials" article of the UCMJ because of their context, being within the role of defense counsel.

Posted by: Lou Gots at September 24, 2006 2:01 PM