Last week the administration sought to redefine actionable treatment of terror prisoners and to take away prisoners' right to contest their detention or treatment in court, as in the case of Hamdan v. Rumsfeld. When Senators John Warner (R.-VI), Lindsey Graham (R.-SC) and John McCain (R.-AZ) proposed alternative legislation, an inter-party scramble ensued to resolve the dispute before Congress adjourns next week, in time for a united Republican Party to campaign for November's elections.
The president's bill sought to amend the 1996 War Crimes Act by precluding prosecution of interrogators by narrowing prosecutable claims. The following interrogation practices would be unprosecutable: forced nakedness, the use of dog leashes, forced wearing of women's underwear, water boarding (a technique which induces the sensation of drowning), temperature extremes, sleep deprivation, restricted diets, standing for as much as 40 hours without rest, and forcing a prisoner to stand in a cold cell, naked, while cold water is splashed and sprayed on him.
The executive branch also tried to block prisoners' right to sue contesting their detention or treatment, legalize military "commissions" to try prisoners without them seeing the evidence against them, and prohibit federal courts from hearing foreign detainees' challenges to detention by habeas corpus lawsuits.
On Sept. 6 President Bush made a dramatic speech in support of his legislation and revealed that 14 Afghan detainees, including Khalid Sheikh Mohammed, mastermind of the September 11 attacks, had been transferred from secret overseas prisons to Guantanamo Bay, where he hoped to try them using the CIA interrogation program being argued in Congress. President Bush cited several times the need to redefine what constitutes "tortureýýso that investigators could proceed without fear of prosecution.
The Bush administration's proposals did not enjoy the support of the entire Republican Party or even of the other branches of government. Senators Warner, Graham and McCain soon brought an alternate bill that supported the ban on habeas corpus lawsuits but specified that the detainee's interrogator may be prosecuted if interrogation techniques "shocked the conscience." Under their bill, evidence used against a prisoner must be declassified to him or her and evidence obtained from prisoner abuse may not be used in military trials.
After a rare visit by the President to the Senate and intense private conferences between the dissident Republican Senators and Vice President Cheney, a compromise was reached on Sept. 21. President Bush will be responsible for defining violations of the Geneva Conventions excepting ýýgrave breaches," including torture and mental abuse, to be outlined by Congress. Military commissions will try detainees, who will receive declassified evidence stripped of sensitive material.
If this bill passes, the administration will maintain its tough-on-terror image while Senator McCain, a potential presidential candidate, will wear the laurels for seeming to hold an unpopular administration accountable without dividing his party. The Republicans will have their cake and eat it in time for midterm elections without solving the problems riddling the detainment of terror suspects.
One must question why this administration feels compelled to define prosecutable interrogation practices so concisely when so many military intelligence officials acknowledge that empirical evidence shows that, as Deputy Assistant Secretary of Defense Charles Stimson told The Washington Post, the best intelligence "is derived through a period of rapport-building, long-term." Indeed, Sept. 11 mastermind Khalid Sheikh Mohammed was captured with the help of a walk-in tip, not the questionable interrogation practices President Bush supports so vociferously.
Contributing writer Katherine Madden is a first year from Grand Forks, N.D. She majors in history.