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July 13th,
2006 - White House Prods Congress to Curb Detainee Rights |
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White
House Prods Congress to Curb Detainee Rights New York Times By Kate Zernike July 13, 2006 Washington,
July 12 - A day after saying that terror suspects had a right to protections
under the Geneva Conventions, the Bush administration said Wednesday that it
wanted Congress to pass legislation that would limit the rights granted to
detainees. The
earlier statement had been widely interpreted as a retreat, but testimony to
Congress by administration lawyers on Wednesday made clear that the picture
was more complicated. The
administration has now abandoned its four-year-old claim that members of Al
Qaeda are not protected under the Geneva Conventions, acknowledging that a
Supreme Court ruling two weeks ago established as a matter of law that they
are. Still, administration lawyers urged Congress to pass legislation that
would narrowly define the rights granted to detainees under a provision of
the Geneva Conventions known as Common Article Three, which guarantees legal
rights “recognized as indispensable by civilized peoples.” The
maneuvering now under way was prompted by that Supreme Court decision, which
struck down the tribunals the administration had established for terror
suspects at Guantánamo Bay, Cuba. The
court left it to Congress to decide what kind of trials to set up for
detainees and what protections they should be granted in interrogations and
handling before trial. Administration
lawyers have argued that the “most desirable” solution would be for Congress
to pass a law approving the tribunals that the court said the president could
not establish on his own, proceedings that would grant minimum rights to
detainees. But
some leading senators said they believed that the White House stance might
still be evolving, despite the public pronouncements by the lawyers who
appeared before Congress. In particular, they thought the White House might
be open to a solution that would abandon the tribunal approach in favor of
one that would modify court-martial procedures to reflect the realities of
putting terror suspects on trial. “I
wouldn’t say that that testimony would set the final parameters of where the
administration will go on this,” said Senator John Warner of Virginia, the
chairman of the Armed Services Committee. As
President Bush headed to Europe on Wednesday, his spokesman, Tony Snow, said,
“The White House is now working with Congress to try to come up with a means
of providing justice for detainees at Guantánamo in a manner that’s
consistent with the Supreme Court’s ruling’’ in the case, Hamdan v. Rumsfeld. In
addition to guaranteeing legal rights, Common Article Three prohibits
“outrages upon personal dignity, in particular, humiliating and degrading
treatment.” In testimony, administration lawyers said that the article was
too vague, and that because failure to comply with Common Article Three was a
violation of the War Crimes Act, applying the article to detainees could lead
to American troops being charged with felony crimes for interrogation tactics
that might be argued to be too harsh. “Congress
needs to do something to bring clarity and certainty to Common Article
Three,” Steven G. Bradbury, an acting assistant attorney general, told the
House Armed Services Committee on Wednesday. Administration
lawyers argued that the White House’s statement Tuesday night was not a
shift, but an announcement and an interpretation of the court’s decision. In
an interview, Senator Lindsey Graham, Republican of South Carolina, said he agreed. “I
think what they’re saying is, Until we get further direction we’re going to
do the following,” Mr. Graham said. “That doesn’t preclude them or us from
giving definition.” The
outcome of the debate could affect detainees around the world. The Pentagon
holds about 1,000 Qaeda and Taliban detainees at Guantánamo and at bases in
Afghanistan. An estimated three dozen terror suspects are believed to be held
by the C.I.A. at secret sites abroad. In
a week of hearings on Capitol Hill, administration lawyers have argued that
the best way to bring detainees to trial after the court’s ruling would be
for Congress to ratify the military commissions the court struck down, with
what Daniel J. Dell’Orto, a Pentagon deputy general counsel, described as
“minor tweaking.” But
several scholars and military lawyers have said that the best way to meet the
court’s requirements on providing legal and human rights to detainees would
be to start with the court-martial procedure set up in the Uniform Code of
Military Justice and modify that. Several
lawmakers have said that only a solution that extended Geneva protections to
detainees would survive another court challenge. “It’s
got to be dealt with so that we do not face a future court challenge, and
also so that the international community recognizes our credibility in
dealing with these things,” said Senator Warner, whose Armed Services
Committee will hold hearings on the issue on Thursday. Military
lawyers, human rights groups and some lawmakers have warned that an effort by
Congress to limit the rights granted to terror suspects under the Geneva
Conventions would blacken the United States’ reputation internationally, by
effectively announcing to the world that it was reneging on a fundamental and
commonly held notion of human rights. “We
should embrace Common Article Three and sing its praises from the rooftops,”
Rear Adm. John D. Hutson, a former judge advocate general of the Navy who is
retired, told the Armed Services Committee. “To avoid it or try to draft our
way out of it is unbecoming the United States.” But
administration lawyers argue that the vagueness of the language in the
provision — including the right to “judicial guarantees which are recognized
as indispensable by civilized peoples’’ — opened the way to problems. “We
just think as you approach these issues, you should give definition and
certainty to these issues,” Mr. Bradbury told the Senate Judiciary Committee
on Wednesday. Even
some Republicans who are fighting the administration’s approach on
establishing trials for the terror suspects agree on the need to limit the
application of Article Three. Senator
Graham, who pointedly warned administration lawyers that the president would
not win by fighting for his approach on trials, said in interviews that
Common Article Three must be “reined in.” He said it would make death penalty
crimes of current interrogation techniques, including keeping detainees awake
and forcing them to sit in extremely hot or cold cells — methods he referred
to as “things that are not torture but are aggressive.” “What
we need to do is take the ruling of Hamdan and define it so that people will
not be unfairly prosecuted because they didn’t know what was in bounds or
not,” Mr. Graham said. Mr.
Graham said defining Article Three would be “the hardest part” of the debate
on how to bring detainees to trial. He suggested that Congress could limit it
in a way that resembled the language of the measure setting standards for the
treatment of detainees that was written by Senator John McCain, Republican of
Arizona, and signed into law last year. “It
says that every detainee will be treated humanely and that cruel, inhumane
treatment will not be allowed against detainees,” Mr. Graham said. “Common
Article Three with its language goes well beyond the McCain standard.” Mr.
Bradbury and Mr. Dell’Orto, too, expressed a preference for Mr. McCain’s
language. Legal
experts agree that the White House’s announcement that it would give Article
Three rights to detainees puts future cases of detainee abuse, like those at
the Abu Ghraib prison in Iraq in 2004, into the category of war crimes. It
raises the stakes, they said, for how American troops treat detainees in
military custody. “This
isn’t a ‘trust me’ kind of undertaking anymore,” said Diane Orentlicher, a
professor of law at American University in Washington. “It’s now a legal
obligation.” Mark
Mazzetti and Sheryl Gay Stolberg contributed reporting for this article. Copyright
2006 The New York Times Company External link:
http://www.nytimes.com/2006/07/13/washington/13gitmo.html |