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Key questions in detainee debate

Sun., Sept. 17, 2006

WASHINGTON – Congress and President Bush are clashing over legislation covering treatment and prosecution of suspected terrorist detainees. One set of issues surrounds what CIA interrogation tactics would constitute torture or degrading treatment of prisoners and amount to war crimes under the Geneva Conventions. Another revolves around the president’s push to create a special military court in which defendants can be excluded from portions of their own trials – even in death-penalty cases – to protect classified information.

Here are answers to key questions defining the debate:

Q: How did the Geneva Conventions come to ban torture, and what force do they carry?

A: In response to atrocities in the treatment of captives during World War I, 128 nations signed the third Geneva Convention in 1925. Common Article III, declaring that all wartime captives must be treated humanely, was officially adopted in 1929. It was expanded after World War II. Article III prohibits torture and “cruel treatment,” including “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Violations of the Geneva Conventions are generally treated as war crimes that could be prosecuted in any signatory nation or an international court.

Q: Did the U.S. treatment of captive al-Qaida members and other terrorism suspects violate Article III?

A: That remains to be seen. Bush insists that the United States “does not torture” but says CIA interrogators used aggressive, specially approved tactics to coerce suspected senior al Qaida operatives held at secret overseas prisons to cooperate. Published reports have said that some captives were put through simulated drownings, denied pain medication, deprived of sleep for days or forced to sleep naked on cold cement floors. A senior administration official, who briefed reporters under the condition of anonymity, said Friday, however, that the language in Article III is undefined and “hopelessly vague in certain respects.”

Q: How do the president’s bill and the legislation passed by the Senate Armed Services Committee differ in regard to interrogation of detainees?

A: Both bills would amend the 1996 War Crimes Act, but in very different ways. Bush’s bill would distinguish explicit offenses as constituting war crimes and bar criminal prosecution of CIA interrogators who used coercive tactics after Sept. 11, 2001. It would bar U.S. judicial enforcement of Article III of the Geneva Conventions. Instead, the administration wants to rely on the 2005 Detainee Treatment Act, which bars cruel, inhumane or degrading treatment of captives within the parameters of the Fifth, Eighth and 14th Amendments of the U.S. Constitution. Critics, including retired military lawyers, consider the change to be tantamount to a U.S. pullout from the international treaty and a downgrade of its protections for prisoners. The Senate bill, sponsored by Sen. John McCain, R-Ariz., Armed Services Committee Chairman John Warner, R-Va., and Sen. Lindsey Graham, R-S.C., isn’t retroactive. It spells out nine activities that would constitute criminal conduct by interrogators, but would leave Article III enforceable.

Q: How do the two bills differ on procedures in proposed special military courts where the detainees would be tried?

A: Bush’s bill would allow a military judge to prevent detainees from seeing, hearing or talking with their lawyers about highly classified evidence used against them. The Senate bill, by contrast, would allow the judge to dismiss charges if he found that the evidence was crucial for a fair trial but the government refused to declassify it. “The concept that somebody can be convicted on the basis of evidence they have never seen is foreign not only to our system of justice, but to any civilized system of justice,” said Marine Col. Dwight Sullivan, chief defense lawyer for the detainees at Guantanamo Bay, Cuba.


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