Bill would legalize harsh techniques of interrogation

The Baltimore Sun

Many of the harsh interrogation techniques repudiated by the Pentagon on Wednesday would be made lawful by legislation put forward the same day by the Bush administration. And the courts would be forbidden from intervening.

The proposal, in the last 10 pages of an 86-page bill devoted mostly to military commissions, is a tangled mix of cross-references and significant omissions.

Legal experts say it adds up to an apparently unique interpretation of the Geneva Conventions, one that could allow CIA operatives and others to use many of the techniques disavowed by the Pentagon, including stress positions, sleep deprivation, extreme temperatures and perhaps simulated drowning

"It's a Jekyll and Hyde routine," Martin S. Lederman, who teaches constitutional law at Georgetown, said of the administration's dual approaches.

In effect, the administration is proposing to write into law a two-track system that has existed as a practical matter for some time.

So-called high-value detainees held by the CIA have been subjected to very tough interrogation in secret prisons around the world. More run-of-the-mill prisoners held by the Defense Department have, for the most part, faced milder questioning, although human rights groups say there have been widespread abuses.

The new bill would continue to give the CIA the substantial freedom it has long enjoyed, although the revisions in the Army Field Manual announced Wednesday would further restrict military interrogators. The legislation would leave open the possibility that the military could revise its standards to allow the harsher techniques.

John C. Yoo, a law professor at the University of California, Berkeley and a former Justice Department official who helped develop the administration's early legal response to the terrorist threat, said the bill would provide people on the front lines with important tools.

"When you're fighting a new kind of war against an enemy we haven't faced before," he said, "our system needs to give flexibility to people to respond to those challenges."

In June, in Hamdan v. Rumsfeld, the U.S. Supreme Court ruled that a provision of the Geneva Conventions concerning the humane treatment of prisoners applied to all aspects of the conflict with al-Qaida. The new bill would prevent such involvement by the courts, Yoo said.

"There is a rejection of what the court did in Hamdan," he said, "which is to try to judicially enforce the Geneva Conventions, which no court had ever tried to do before."

The proposed legislation takes pains to try to ensure that the Supreme Court would not have a second opportunity.

"The Act makes clear," it says in its introductory findings, "that the Geneva Conventions are not a source of judicially enforceable individual rights."

Lawsuits will almost certainly be filed challenging the bill if it becomes law, but most legal experts said Congress probably has the power to restrict the courts' jurisdiction in that way.

The proposed legislation would provide retroactive immunity from prosecution to government agents who used harsh methods after the Sept. 11 attacks. And, as President Bush suggested Wednesday, it would ensure that those techniques remain lawful.

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