The War Profiteers - War Crimes, Kidnappings, Torture and Big Money
September 29th, 2006 - Senate Approves Broad New Rules to Try Detainees
By Kate Zernike
New York Times
September 29, 2006
Washington, Sept. 28 - The Senate approved a measure on Thursday on the interrogations and trials of terrorism suspects, establishing far-reaching rules to deal with what President Bush has called the most dangerous combatants in a different type of war.
The vote was 65 to 34. It was cast after more than 10 hours of often impassioned debate that touched on the Constitution, the horrors of Sept. 11 and the role of the United States in the world.
Both parties also positioned themselves for the continuing clash over national security going into the homestretch of the midterm elections. The vote showed that Democrats believe that President Bush’s power to wield national security as a political issue is seriously diminished.
The bill would set up rules for the military commissions that will allow the government to proceed with the prosecutions of high-level detainees including Khalid Shaikh Mohammed, considered the mastermind of the Sept. 11, 2001, attacks.
It would make illegal several broadly defined abuses of detainees, while leaving it to the president to establish specific permissible interrogation techniques. And it would strip detainees of a habeas corpus right to challenge their detentions in court.
The bill is the same as one that the House passed, eliminating the need for a conference between the two chambers. The House is expected to approve the Senate bill Friday, sending it to the president to be signed.
The bill was a compromise between the White House and three Republican senators who had resisted what they saw as Mr. Bush’s effort to rewrite the nation’s obligations under the Geneva Conventions. Although the president had to relent on some major provisions, the vote allows him to claim victory in achieving a main legislative priority.
“As our troops risk their lives to fight terrorism, this bill will ensure they are prepared to defeat today’s enemies and address tomorrow’s threats,” the president said in a statement after the vote.
Republicans argued that the new rules would provide the necessary tools to fight a new kind of enemy.
“Our prior concept of war has been completely altered, as we learned so tragically on Sept. 11, 2001,” Senator Saxby Chambliss, Republican of Georgia, said. “And we must address threats in a different way.”
Democrats argued that the rules were being rushed through for political gain too close to a major election and that they would fundamentally threaten the foundations of the American legal system and come back to haunt lawmakers as one of the greatest mistakes in history.
“I believe there can be no mercy for those who perpetrated the crimes of 9/11,” Senator Hillary Rodham Clinton, Democrat of New York, said. “But in the process of accomplishing what I believe is essential for our security, we must hold onto our values and set an example that we can point to with pride, not shame.”
Twelve Democrats crossed party lines to vote for the bill. One Republican, Senator Lincoln Chafee of Rhode Island, voted against it.
But provisions of the bill came under criticism from Republicans as well as Democrats, with several crossing lines on amendments that failed along narrow margins.
Senator Carl Levin of Michigan, the senior Democrat on the Armed Services Committee, arguing for an amendment to strike a provision to bar suspects from challenging their detentions in court, said it “is as legally abusive of the rights guaranteed in the Constitution as the actions at Abu Ghraib, Guantánamo and secret prisons were physically abusive of detainees.”
The amendment failed, 51 to 49.
Even some Republicans who voted for the bill said they expected the Supreme Court to strike down the legislation because of the provision barring court detainees’ challenges, an outcome that would send the legislation right back to Congress.
“We should have done it right, because we’re going to have to do it again,” said Senator Gordon H. Smith, Republican of Oregon, who voted to strike the provision and yet supported the bill.
The measure would broaden the definition of enemy combatants beyond the traditional definition used in wartime, to include noncitizens living legally in the United States as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense.
It would strip at Guantánamo detainees of the habeas right to challenge their detention in court, relying instead on procedures known as combatant status review trials. Those trials have looser rules of evidence than the courts.
It would allow of evidence seized in this country or abroad without a search warrant to be admitted in trials.
The bill would also bar the admission of evidence obtained by cruel and inhuman treatment, except any obtained before Dec. 30, 2005, when Congress enacted the Detainee Treatment Act, that a judge declares reliable and probative.
Democrats said the date was conveniently set after the worst abuses at Abu Ghraib and Guantánamo.
The legislation establishes several “grave breaches” of Common Article 3 of the Geneva Convention that are felonies under the War Crimes Act, including torture, rape, murder and any act intended to cause “serious” physical or mental pain or suffering.
The issue was sent to Congress as a result of a Supreme Court decision in June that struck down military tribunals that the Bush administration had established shortly after the Sept. 11 attacks. The court ruled that the tribunals violated the Constitution and international law.
The White House submitted a bill this month to authorize a tribunal system, setting off intraparty fighting as the three Senate Republicans, Lindsey Graham of South Carolina, John McCain of Arizona and John W. Warner Jr. of Virginia, insisted that they would not support a provision that in any way appeared to alter the commitments under the Geneva Conventions.
Such a redefinition, they argued, would send a signal to other nations that they, too, could rewrite their commitments to the 57-year-old conventions and, ultimately, lead to Americans seized in wartime being abused and tried in kangaroo courts.
The White House and the senators came to their agreement last week.
Democrats and human rights groups objected to changes in the legislation over the weekend, as the House and White House drafted final language, including defining enemy combatants and setting rules on search warrants.
“We should get this right, now, and we are not doing so by passing this bill,” Senator Harry Reid, the Nevada Democrat who is the minority leader, said before the vote. “Future generations will view passage of this bill as a grave error.”
Human rights groups called the vote to approve the bill “dangerous” and “disappointing.” Critics feared that it left the president a large loophole by allowing him to set specific interrogation techniques.
Senators Graham, McCain and Warner rebutted that vociferously, arguing in floor statements, as well as in a colloquy submitted into the official record, that the measure would in no way give the president the authority to authorize any interrogation tactics that do not comply with the Detainee Treatment Act and the Geneva Conventions, which bar cruel and inhuman treatment, and that the bill would not alter American obligations under the Geneva Conventions.
“The conventions are preserved intact,” Mr. McCain promised his colleagues from the floor.
After the vote, Mr. Graham said: “America can be proud. Not only did she adhere to the Geneva Conventions, she went further than she had to, because we’re better than the terrorists.”
Besides the amendments that would have struck the ban on habeas corpus cases, the others that failed included one that would have established a sunset on the measure to allow Congress to reconsider it in five years and one that would have require the C.I.A. to submit to Congressional oversight.
Another failed amendment would have required the State Department to inform other nations of what interrogation techniques it considered illegal for use on American troops, a move intended to prompt the administration to say publicly what techniques it considers out of bounds.
External link: http://www.nytimes.com/2006/09/29/washington/29detain.html
By Anne Plummer Flaherty
The Associated Press
Friday, September 29, 2006; 3:00 PM
Washington - Congress sent President Bush a bill Friday that endorses his plan to interrogate and prosecute terror suspects, legislation Republicans hope will win them political points on the campaign trail.
Once Bush signs it, which he was expected to do very soon, the military can begin prosecuting terror suspects.
Many Democrats opposed the legislation because they said it eliminated rights of defendants considered fundanamental to American values, such as a person's ability to protest court detention and the use of coerced tesimony as evidence.
The House had already voted this week, 253-168, endorsing Bush's plan for military detainees. The Senate passed a nearly identical bill Thursday by a 65-34 vote. Rather than reconcile the technical differences between the two bills, the House voted 250-170 to send the Senate version to the president to sign.
The legislation, which sets the rules for court proceedings, would only apply to those selected by the military for prosecution and leaves mostly unaffected the majority of the 14,000 prisoners in U.S. custody, most of whom are in Iraq. The bill would protect detainees from blatant abuses - such as rape, torture and "cruel and inhuman" treatment _ but does not require that each of them be granted legal counsel and specifically bars detainees from protesting their detentions in federal courts.
The Penatgon had previsouly selected 10 prisoners at Guantanamo Bay prison to be tried and Bush is expected also to try some or all of the 14 suspects held by the CIA in secret prisons and recently transferred to military custody at Guantanamo.
The vote was considered a major election-season victory for Bush and Republicans, who will likely try to spin Democrats' opposition as being soft on terrorists.
While Bush can count on Congress for the sort of military tribunals he wants, the White House likely will have to await a lame duck session after the election to get authorization for warrantless wiretaps.
The White House failed to help bridge differences between the Senate and the House on the eavesdropping program. The House, on a 232-191 vote Thursday, approved a bill to grant legal status to the warrantless wiretapping program with new restrictions. The Senate bill was different enough that efforts to reach a compromise on the two measures was unlikely before the elections.
Most Democrats opposed the detainee bill, contending that Republicans were pushing through a sloppy measure to sell voters, but not because it made sense.
GOP policies on national security "may have been tough, but they certainly weren't smart," said Senate Minority Leader Harry Reid.
But Republicans said passage of the bill would withstand court scrutiny and the test of time.
"In this new era of threats, where the stark and sober reality is that America must confront international terrorists committed to the destruction of our way of life, this bill is absolutely necessary," said Sen. Saxby Chambliss, R-Ga.
The overall bill would prohibit war crimes and define such atrocities as rape and torture but otherwise would allow the president to interpret the Geneva Conventions, the treaty that sets standards for the treatment of war prisoners.
The bill on interrogations and trials also would eliminate some rights common in military and civilian courts. For example, the commission would be allowed to consider hearsay evidence so long as a judge determined it was reliable. Hearsay is barred from civilian courts.
The legislation also says the president can "interpret the meaning and application" of international standards for prisoner treatment, a provision intended to allow him to authorize aggressive interrogation methods that might otherwise be seen as illegal by international courts.
© 2006 The Associated Press
By Stephanie Nebehay
Friday, September 29, 2006; 10:31 AM
Geneva (Reuters) - The U.N. torture investigator charged on Friday that a new U.S. law for tough interrogation of terrorism suspects would deprive people of the right to a fair trial before independent courts and could lead to mistreatment.
Manfred Nowak, United Nations special rapporteur on torture, regretted that the bill ignored U.N. rights bodies which have said U.S. interrogation methods and prolonged detentions violate international law.
The Senate gave final approval on Thursday to the bill, a day after its passage by the House of Representatives. President George W. Bush is expected to sign it into law very soon.
"I am afraid that with the new law, the interrogation methods will not really change. Bush has said that harsh interrogation methods will continue and that is my concern," the Austrian law professor told Reuters in a telephone interview.
The U.N. Committee against Torture and the U.N. Human Rights Committee have found the U.S. interrogation methods are unlawful and expressed concern at arbitrary detentions.
"The bill does not take into account substantive criticism from our side ... It is not the signal that I would have expected the U.S. government and Congress would make in order to try to comply with our recommendations," Nowak said.
The bill sets standards for interrogating suspects, but with complex rules that rights groups say could allow techniques that border on torture such as sleep deprivation.
Bush got much of what he wanted in the bill to continue the once-secret Central Intelligence Agency (CIA) program of detention and aggressive interrogations of suspects.
It establishes military tribunals that would allow some use of evidence obtained by coercion, but would give defendants access to classified evidence being used to convict them.
Right to fair trial
"These people must have a right to fair trial before an independent court which in principle should be an ordinary court. I am particularly concerned that with the bill, the habeas corpus rights are further reduced," Nowak said.
Habeas corpus refers to a person's right to go before an independent judge who rules on the legality of the detention.
"This is one of the most regressive pieces of legislation in U.S. history," Reed Brody, legal counsel at the New York-based group Human Rights Watch, told Reuters.
A landmark Supreme Court ruling last June struck down Bush's first military commissions to try suspects, leaving the process in limbo. There have been no successful prosecutions since the September 11 attacks, which killed nearly 3,000 people in 2001.
The bill expands the definition of "enemy combatants" mostly held at the U.S. prison at Guantanamo Bay, Cuba, to include those who provide arms, money and other aid to terrorist groups.
"The Bush administration has been given authority to determine who is an enemy combatant and to lock people up on its own say-so indefinitely without trial," Brody said.
"We would have thought that after Guantanamo Bay, Abu Ghraib and secret prisons, the administration would have learned mistreatment and torture do not make the country safer against terrorism, but in fact render it more vulnerable," he added.
The International Commission of Jurists said the law put inmates at Guantanamo and elsewhere "back in a legal black hole."
"It is terrible to say the least for the detainees and rule of law in the United States, but also a dangerous precedent because it undermines international human rights law standards," said Gerald Staberock, head of the ICJ's global security program.
© 2006 Reuters