Bush Signs Tough Rules on Detainees
President Bush signed new legislation Tuesday providing for the detention and prosecution of terrorism suspects, and the Justice Department moved immediately to request the dismissal of dozens of lawsuits filed by detainees challenging their incarceration.
Bush signed the legislation in an elaborate East Room ceremony, calling it a “vital tool” in the administration’s war on terrorism. Almost immediately, Republican Party leaders charged that the measure’s Democratic critics advocate freeing terrorists.
The new law thus became part of the GOP’s push to preserve its congressional majority in next month’s elections as well as part of the administration’s continuing effort to devise a judicial process for those captured in military and counter-terrorism operations.
The law is bound to generate new and contentious legal challenges that probably will leave U.S. policies on detainees in an uncertain state. In addition to the request to throw out lawsuits by detainees seeking to have their day in court, judges will be asked to decide new legal questions about the fairness of the tribunal process. Both issues may end up before the Supreme Court.
Meanwhile, human rights groups said it was far from clear how the new law will be implemented, and the CIA made plans to ask Justice Department lawyers to review interrogation guidelines.
The legislation sets new rules for the CIA to conduct interrogations and allows for the prosecution of terrorism suspects before military tribunals. Bush said the measure enables the U.S. to bring to justice the coordinators of the Sept. 11 attacks and allows the CIA to continue an aggressive interrogation program that he said had disrupted plans for additional terrorist strikes.
“With the bill I’m about to sign, the men our intelligence officials believe orchestrated the murder of nearly 3,000 innocent people will face justice,” Bush said, sitting at a table with a sign on it that said “Protecting America.”
He was surrounded by military officers, members of his Cabinet and lawmakers who helped pass the bill. Several dozen protesters outside in the rain chanted slogans branding the measure an affront to civil liberties.
The enactment of the law -- four months after the Supreme Court said that an earlier system for handling terrorism cases violated U.S. law -- was welcome news for Bush and came as casualties have mounted in Iraq and his handling of the war on terrorism has come under intensifying criticism.
The signing ceremony was part political rally for a GOP that is struggling to retain control of Congress three weeks before pivotal midterm elections. Republican leaders said the legislation showed that they were a party of strength and assailed Democrats for not supporting the measure.
“The Democratic plan would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives,” House Speaker J. Dennis Hastert (R-Ill.) said.
House Democrats had “voted in favor of new rights for terrorists,” Hastert said, adding that the Democrats had “put their liberal agenda ahead of the security of America.”
Both chambers of Congress approved the legislation last month in votes largely along party lines.
In the House, 34 Democrats joined 219 Republicans in voting for the bill; 160 Democrats, seven Republicans and one independent voted against it.
In the Senate, 12 Democrats joined 53 Republicans in voting for it; one independent and one Republican joined 32 Democrats in voting against it.
Many Democrats decried the bill as a step backward on civil rights. House Minority Leader Nancy Pelosi of San Francisco criticized the law for allowing Bush to “interpret” the Geneva Convention and said court challenges would render the law useless.
“Democrats want terrorists who kill Americans tried, convicted and punished through a constitutionally sound process that will be upheld on appeal,” Pelosi said. “That goal will not be achieved by the bill President Bush signed into law today.”
The Justice Department moved swiftly to enforce one of the law’s most controversial provisions. Within two hours of the signing ceremony, department lawyers notified the U.S. Appeals Court in Washington that the new law eliminated federal court jurisdiction over dozens of lawsuits filed on behalf of prisoners held at U.S. military prison at Guantanamo Bay, Cuba.
Lawyers for the detainees responded with their own filing Tuesday, requesting time to present legal arguments that the new law violated the Constitution.
The detainees’ lawyers, who had won victories on behalf of their clients -- Shafiq Rasul and Salim Ahmed Hamdan -- in two previous cases that went to the Supreme Court, said they were confident they would prevail again.
“We beat them in Rasul. We beat them in Hamdan. Now, they have tried to beat us in Congress. I don’t think it will work,” said Michael Ratner, president of the Center for Constitutional Rights, a New York advocacy group that has represented a number of the detainees. “They have been slapped down twice. I think they will be slapped down again.”
Bush said the tribunal procedures would ensure a “full and fair trial” for terrorism suspects.
The rules guarantee the suspects access to a lawyer and make inadmissible as evidence confessions and other statements obtained through torture, although coerced testimony is admissible if the judge finds it reliable.
The administration has identified about two dozen suspects it plans to put on trial, including Khalid Shaikh Mohammed, who is accused of being the mastermind of the Sept. 11 attacks. Along with 13 other high-profile suspects, he was recently transferred from CIA custody to Guantanamo Bay.
The rules do not affect most of the estimated 435 prisoners being held at the military prison in Cuba. Unless the military decides to bring charges, most of the detainees will remain in legal limbo, without the opportunity to challenge their status.
Bush said the new interrogation provisions would allow the CIA to restart a program of tough questioning of terrorist suspects that ground to a halt more than a year ago as Congress debated legislation banning the use of torture and questions about whether rough treatment of detainees would subject operatives to prosecution for war crimes.
A senior administration official said that the CIA had not made final a list of interrogation tactics or procedures, but when it does, it will submit its new program to the Justice Department for a legal review. Once it gets the blessing of the Justice Department, the program will be brought before Congress, said the official, speaking on condition of anonymity because of the secrecy of the CIA effort.
“The CIA will have to brief its program to an oversight committee,” said the senior official. “This is the beginning of the conversation, not the end.”
Administration officials have refused to list any interrogation techniques that would be banned by the act, arguing that it was important to leave “ambiguity in the minds of Al Qaeda” about what the United States might do.
However, it seems clear that the most controversial of CIA interrogation techniques, including simulated drowning, extreme cold to induce hypothermia or extreme stress positions, would be outlawed, either under the provisions banning torture or the provision making cruel treatment of detainees a war crime.
“Under this law they cannot inflict suffering, mental or physical suffering,” said Tom Malinowski, the Washington advocacy director of Human Rights Watch.
Although the law does not make “degrading” treatment a war crime, the act does ban such treatment. The senior administration official said determining what sorts of techniques might be allowed against alleged terrorists without violating the ban will be up to the Justice Department.
Administration officials have said there is room within the strict prohibitions of the Army Field Manual on Interrogations and the prohibitions set out in the Military Commissions Act. But some human rights advocates said under their reading of the law there were not a lot of allowed techniques in that gray area.
Elisa Massimino, the Washington director of the group Human Rights First, said that Republican senators have made clear that techniques banned by the Army Field Manual also will be outlawed by the Military Commissions Act. The Army Field Manual bans interrogation techniques based on force, stress or pain.
“I think you have to do some pretty creative lawyering to see any daylight between those two standards,” she said.