Key Republican Senators have rejected the Bush administration’s attempt to rewrite the humane treatment requirements of the Geneva Conventions, but have made key parts of the conventions effectively unenforceable, Human Rights Watch said today.
“Today’s agreement was a disappointing compromise, even though it rejected some of the Bush administration’s most outrageous proposals,” said Kenneth Roth, Executive Director of Human Rights Watch. “From now on, CIA interrogators who use abusive practices like waterboarding, hypothermia and extended sleep deprivation could face prosecution if the government chooses, but victims of abuse are denied access to the courts.”
The administration had pushed hard for an explicit redefinition of the humane treatment standards under Common Article 3 of the Geneva Conventions, claiming that the CIA’s secret prison program could not continue without it. Senate negotiators rejected that demand, while accepting a potentially damaging provision that delegates authority to the president to promulgate regulations interpreting certain elements of Common Article 3.
The agreement also rejects the administration’s attempt to decriminalize all interrogation practices short of torture, and makes clear that engaging in cruel and inhuman treatment will be a prosecutable war crime. However, the definition of what is cruel and inhuman is narrowly drawn. While it should be sufficient to prohibit the most abusive CIA techniques, the administration may try to interpret it as allowing certain humiliating and degrading practices banned by Common Article 3.
The agreement includes “court-stripping” provisions that prevent detainees in U.S. custody anywhere around the world from challenging the legality of their detention or their treatment. Innocent detainees could be locked up forever, without ever having a chance to have their case reviewed by an independent court. And victims of the very abusive practices that the legislation outlaws would be forever precluded from challenging – and bringing to light – those abuses. Courts would have no power to stop even ongoing torture.
“It is essential that the bill be amended to ensure that all detainees have access to the courts to challenge the legality of their detention and their treatment,” said Roth.
Ironically, suspects like Khalid Sheikh Mohammad would have more rights than most detainees under the new bill. High-level detainees would be brought before the military commissions created by this legislation, confronted with the charges against them, and given an opportunity to respond. But many detainees would be locked up forever and never given a chance to challenge their detention or end abusive interrogations.
“Rights without the possibility of enforcement can too easily become no rights at all,” said Roth.
The legislation will preclude any person from ever invoking the Geneva Conventions in any suit against the U.S. government. This means that those subjected to the military commissions created by this legislation will be prevented from raising the claim that the trials do not satisfy the fair trial standards of Common Article 3 – one of the key elements of the Hamdan case striking down the old military commissions.
The legislation agreed to yesterday and introduced into Congress today also authorizes the administration to try detainees in newly created military commissions. While the rules largely track the Uniform Code of Military Justice (UCMJ), and include improvements on the administration’s initial proposal, they also include many disturbing deviations from the UCMJ. Positive changes from the administration’s proposal include rules ensuring that defendants have access to the same evidence presented to the factfinder and that they not be convicted based on secret evidence, as the administration had demanded.
For the first time in U.S. history, however, Congress would allow into evidence statements derived through cruel, inhuman and degrading interrogation, if the interrogations were carried out prior to the passage of the McCain amendment last year, which reaffirmed prohibitions on such practices. While the compromise added certain protections not present in the administration’s initial proposal – such evidence would have to be determined to be reliable by an independent judge – the allowance of such evidence, when combined with the liberal rules on hearsay included in the bill means that a defendant could be convicted based on a second- or third-hand summary of evidence obtained through practices like waterboarding, extended sleep deprivation or induced hypothermia – without any opportunity for the defendant to confront his accuser.
“The bill would still allow a suspect to be convicted and executed based on a coerced confession,” said Roth.
Human Rights Watch said that the draft legislation also would allow the government to protect the “sources, methods or activities by which the United States acquired evidence” if those practices are classified. Because the government has said that all “alternative” interrogation procedures are classified, this provision could be used to prevent military commission defendants from effectively challenging the use of torture or mistreatment.