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Cold Comfort - Detainees

The Economist
October 7, 2006

The new law on detainees
 
President Bush's new law on the treatment of terrorist suspects
 
AFTER more than three weeks of wrangling with enemies and allies alike in Congress, President George Bush on September 29th at last won approval for the legislation on terrorist detainees that he says is vital to save American lives. But it is unlikely to improve America's image around the world much. Not only does it permit the CIA to continue its harsh interrogation of suspected terrorists in secret prisons abroad, it also strips foreign detainees of one of the civilised world's most ancient legal protections—the right to challenge their detention in court.
 
Democratic efforts to limit the bill's measures to five years, to require frequent reports from the administration on the CIA's interrogations and to specify which interrogation techniques were forbidden were all defeated. Even some Republicans were appalled, particularly by the suspension of habeas corpus. “I'm not going to support a bill that's blatantly unconstitutional...that suspends a right that goes back to [the Magna Carta in] 1215,” declared Arlen Specter, Republican chairman of the Senate Judiciary Committee—though he ended up voting for the bill after his amendment failed.
 
Many are already predicting a new challenge in the Supreme Court. In June, the court dealt Mr Bush a heavy blow by ruling that Common Article 3 of the Geneva Conventions, laying down minimum standards for the treatment of prisoners, applied to all detainees, whoever they were and wherever they were being held. The administration had previously argued that the conventions did not apply to al-Qaeda or other terrorist suspects, particularly if held outside the United States.
 
In a televised speech on September 6th, in which he confirmed the existence of the CIA's network of secret prisons for the first time, Mr Bush admitted that a “limited number” (an estimated 100 over the past five years) of “high-ranking” al-Qaeda and Taliban suspects had been subjected to “an alternative set” of “tough”, interrogation techniques—though not torture, he insisted. But the court's ruling had put into question the future of this programme, required to extract “life-saving information” from particularly recalcitrant detainees.
 
Following the transfer of the last 14 CIA detainees to Guantánamo on September 4th, there was now no one left in the programme, Mr Bush said. But he made it clear that he intended to restart it as soon as he got the necessary legislation to protect CIA agents from possible prosecution for war crimes. The new law does that. It bars the Geneva Conventions from being invoked against American personnel; gives the president power to interpret the “meaning and application” of the conventions; and authorises him to establish which interrogation techniques are permissible, though “a grave breach”, such as rape and outright torture, is banned.
 
It also authorises the trial of detainees accused of war crimes by the special military tribunals set up by Mr Bush in Guantánamo Bay. (Of the 770 men who have passed through the camp, only ten have so far been charged.) In June, the Supreme Court struck down the tribunals on the grounds that they had not been approved by Congress and did not provide the proper due process protections guaranteed by the Geneva Conventions. But human-rights groups complain that the reconstituted tribunals still allow hearsay and coerced evidence, and bar appeal to an independent court against conviction or sentence, even the death penalty.
 
The result of a last-minute deal between the White House and a group of Republican dissidents, including Senator John McCain, front-runner for nomination as the Republican presidential candidate in 2008, the new law marks one big advance on Mr Bush's original plans. Defendants will now be entitled to see all the evidence against them, though some of it only in “redacted” form. But that will be of little comfort to the mass of detainees who still face the prospect of languishing in Guantánamo without ever being charged or tried and without any possibility of challenging their detention.

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