Senate Compromise on Detainee Rights, Torture
Senators Lindsey Graham and Carl Leven have reached across the aisle to forge a compromise bill that would give limited judicial rights to those accused of terrorism, including a reiteration of existing policy against torture.
Senators Agree on Detainee Rights (WaPo, A1)
A bipartisan group of senators reached a compromise yesterday that would dramatically alter U.S. policy for treating captured terrorist suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights. The compromise links legislation written by Sen. Lindsey O. Graham (R-S.C.), which would deny detainees broad access to federal courts, with a new measure authored by Sen. Carl M. Levin (D-Mich.) that would grant detainees the right to appeal the verdict of a military tribunal to a federal appeals court. The deal will come to a vote today, and the authors say they are confident it will pass.
Graham and Levin indicated they would then demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities. “McCain’s amendment needs to be part of the overall package, because it deals with standardizing interrogation techniques and will reestablish moral high ground for the United States,” Graham said.
Such broad legislation would be Congress’s first attempt to assert some control over the detention of suspected terrorists, which the Bush administration has closely guarded as its sole prerogative. By linking a provision to deny prisoners the right to challenge their detention in federal court with language restricting interrogation methods, senators hope to soften the administration’s ardent opposition to McCain’s anti-torture provision — or possibly win its support.
The Justice and Defense departments have expressed strong support for legislation that would curtail a flurry of civil litigation coming out of the military’s detention camp at Guantanamo Bay, Cuba, according to some senators involved in the negotiation. “The truth is, this is something the administration would dearly like,” Sen. Jeff Bingaman (D-N.M.) said of the language curtailing detainee access to the courts.
But Vice President Cheney, a major architect of the U.S. anti-terrorism effort, is strongly opposed to any compromise that includes the McCain provision, the senators said. Cheney personally lobbied against McCain’s measure to ban abuse and torture, contending that its language was too broad and would prohibit the use of interrogation methods necessary to secure vital national security information. After the Senate approved the measure as part of a defense spending bill, he pushed to exempt the CIA from its provisions.
While I share Cheney’s concern about the possibility of congressional micromanagement in national security matters, setting the policy parameters within which the executive may operate is very much Congress’ prerogative, if not their duty. It is the job of the president and the professional bureaucracies he leads to execute public policy and that of the legislature to establish it.
Rick Moran adds some useful information and insights:
It has been a national disgrace that the detainees have been held these past 3 years with their legal status up in the air. The situation was complicated unnecessarily last year when the courts ruled that detainees had a right to a hearing on their status. The resulting flood of motions Ã¢€“ both frivolous and serious Ã¢€“ became a nightmare for the Justice Department and DoD who had been asking Congress to clarify what rights the detainees had in this unique legal situation. The fact that both the Administration and the Republican Congress took their own sweet time in addressing the issue only gave our international foes an opening in the propaganda war.
The compromise neatly addresses the concerns of DoD in that intelligence gained from interrogations as well as the way certain information on individual terrorists was obtained either through Ã¢€œNational Technical MeansÃ¢€ (eavesdropping, spy satellites, etc.) or through informants will not be used in open court by activist lawyers seeking to undermine our intelligence capabilities in the War on Terror. The bill will also give the Justice Department some guidance on how to proceed with the appeals process. And incorporating some form of the McCain bill will standardize the the Army Field Manual techniques for interrogating prisoners thus putting the nation on record that it opposes the kind of interrogations that have led to more than 400 investigations by DoD into accusations of abuse with 230 determinations that have resulted in either reprimands or court martials.
hilzoy provides PDF links to the amendments in question. Even after reading them, though, he’s not sure he understands them:
I can’t tell you how frustrating it is to have done as much as possible to research this issue, which has such a huge effect on hundreds of people’s lives and on what kind of country the United States will be, and to not even really understand what these bills mean on the day before the Senate votes on them. I went to law school, and have very smart people who know a lot about this issue trying to explain this to me, and I still feel like I’ve wandered into this scene. As Judge Joyce Hens Green said of Moustafa Idr’s trial, it would be funny if the stakes weren’t so horribly high.
Norbizness provides a “Cliff’s Notes version,” replete with sarcastic commentary.
Hugh Hewitt, on the other hand, contends,
The proposed Senate resolution is an unmistakable vot-of-no-confidence in the Adminsitration, and the best gift the United States Senate could give Zarqawi and his terrorist ranks. It is almost incomprehensible that Senate Republicans could see this in any other fashion.
One could argue that the perception that the United States is a nation that tortures its prisoners and practices other than what it’s preaching in the Middle East about the rule of law plays into Zarqawi’s hands, too. But that would, apparently, be tantamount to treason.
Hugh cites a post from Pam Spaulding at Pandagon as proof of his position.
Cat Killer Frist and John Warner of Virginia want to get their party out of the vortex sucking down the Chimp and are moving, with a non-binding resolution, to solidify their position with the equivalent of a no-confidence vote on Bush’s Iraq policy.
One could argue, contrarily, that keeping the party of of a vortex is a good thing but that, too, plays into the hands of the
terrorists enemy Democrats.
Ed Morrissey, apparently a Democrat pinko mole, takes a similarly pro-terrorist, anti-American position:
It isn’t unreasonable to have Congress call for some accounting from the White House on the status of Iraq, given the 150,000 troops currently deployed on a police mission there. It doesn’t have to be a net negative for Bush to come to the Senate to present his side of the story; as the events this past week have shown, the President can use that kind of platform to correct many distortions of his record and the state of the effort in Iraq. Given the frustration many in the GOP feel with the White House in communicating all the good that our intervention has created, it sounds like a very good idea indeed, one that might be cast as a long-overdue bullhorn.
Of course, if individual Republicans, including elected United States Senators, are allowed to think for themselves, the next thing you know we’ll have anarchy.
By making torture illegal we are raising the price of torture but we are not raising the price to infinity. If the President or the head of the CIA thinks that torture is required to stop the ticking time bomb then they ought to approve it knowing full well that they face possible prosecution. Only if the price of torture is very high can we expect that it will be used only in the most absolutely urgent of circumstances.
[I]n the fantastically unlikely 24-esque event that we capture a terrorist who knows the location of a ticking atomic bomb, he’s going to get tortured regardless. The torturer will immediately get pardoned by the president for doing so, and would be unanimously acquitted by a jury even if he weren’t. And I’m fine with that.
I’ve long endorsed Glenn Reynolds’ take on the torture question: if there really is a ticking nuclear bomb in New York City, and the CIA gets hold of a guy who can tell them what they want to know, they’re going to torture it out of him whether torture is legal or not.
Sadly, even in the case of a ticking time bomb, there’s little evidence that torture actually works at gaining accurate information. People will confess to just about anything to stop the pain. And people willing to murder innocents are certainly willing to lie to do so.