Opinion Editorials
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LOOK PAST THE TORTURED DISTORTIONS
October 2, 2006
We also believe that the American people deserve to have this important legislation properly described. Some recent reports, in our view, have not reflected accurately the bill we negotiated. The following points deserve clarification in order that this important legislation may be fully understood by the American people.
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Criminal Waiver: A number of recent articles state that in our compromise with the president, we included a waiver for crimes Americans may have committed in interrogating detainees. In fact, our bill contains no waiver for such crimes, nor immunity for any individual. Anyone who has committed a crime may be prosecuted under the torture statute or the War Crimes Act. This legislation actually makes it easier to win a prosecution, because the War Crimes Act as currently written is so broadly worded that a prosecution would likely fail on grounds of vagueness.
Enemy Combatants: Other reporting asserts that the definition of "illegal enemy combatant" in the bill could subject a broad category of people to arrest and indefinite detention with no hope of appeal. Actually, the proposed legislation simply establishes the jurisdiction of military commissions. That jurisdiction extends solely to aliens who have engaged in hostilities against the
We make no apology for wanting to try by military commission both the people who shoot at us and those who aid and abet the trigger-men. Because we believe in the American system of justice, we also do not apologize for giving these individuals the right to appeal their convictions, all the way up to the Supreme Court.
The
Some critics state that any determinations made by the president could stay secret. In fact, this legislation requires the president to publish his determinations as to what offenses constitute "non-grave breaches" of the Geneva Conventions in the Federal Register. His interpretations will have the force of administrative regulations, and so can be trumped by congressional action at any time.
Habeas Corpus: Another myth is that, under our bill, detainees would lose the basic right to challenge their imprisonment. Actually, both the Detainee Treatment Act and the Military Commissions Act allow an individual to challenge his status in administrative and judicial fora. These challenges are in excess of what our soldiers would be afforded as prisoners of war.
Judicial Review: Other critics claim that our civilian courts would have no power to review any aspect of the military tribunal system, except verdicts by military tribunals. The truth is that our federal courts today already have the right to review the decisions made by military Combatant Status Review Tribunals.
Coerced Evidence: A number of articles state that coercion is defined so as to exempt anything done before the passage of the 2005 Detainee Treatment Act. This, also, is incorrect.
The bill excludes any evidence obtained through illegal interrogation techniques, including those prohibited by the 2005 act. Any evidence obtained before the 2005 law would have to pass a legal reliability test -- and, as applied in practice, the greater the degree of coercion, the more likely the statement will not be admitted. To admit any such evidence, the judge would have to make an additional finding that doing so serves the interest of justice.
Secret Evidence: Some argue the bill weakens the legal standard against withholding evidence from the defendant. In fact, under this legislation, any evidence shown to the jury must be shared with the defendant. This was a key change from the administration's proposal.
Offenses: Finally, there is some confusion about the definitions of torture and rape within the bill. As is made explicit in the legislation, these definitions are for the purposes only of enumerating war crimes -- offenses so serious that they are all potentially punishable by death. They do not affect other legal definitions for the same terms (including torture and rape) contained elsewhere in law. The bill's definition of rape is based on the meaning used in the International Criminal Tribunal for the Former Yugoslavia.
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It is axiomatic that a compromise makes no one happy. Our mission was to help our nation in the war on terror and to give protection to our men and women in uniform, particularly if they are captured. Anyone may disagree with elements of the final product, but an accurate understanding of the legislation is essential to all sides of the debate.
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Messrs. Warner, McCain and Graham are Republican senators for
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