Major policy shift as secret CIA prison detainees sent to Guantanamo. GOP v. GOP argument over White House-proposed legislation that would make admissable evidence obtained under duress in military tribunals. CIA would be able to continue harsh interrogation techniques, while new Army field manual prohibits them.

Spencer Ackerman writes: "Should [KSM's] probable trial reflect the legal doctrine of the 'fruit of the poisoned tree'--that is, will evidence obtained through torture be admissible in the military tribunals or not? McCain's Detainee Treatment Act of 2005 says 'of course not!' but Bush indicated in his infamous 'signing statement' that he thinks he has the right to torture whoever he pleases. Now Congress will face a very unpleasant question: Unless it rejiggers the military tribunals to bless torture/coercion, KSM and other Al Qaeda figures might in fact be set free by the courts. Is Bush so cynical as to force Congress into the odious position of either setting the stage for murderers to walk out of Gitmo or blessing torture? Of course he is!"

Marty Lederman writes:

As I explain below, however, that's only half the story, because the draft Administration bill would (i) retroactively legalize all the unlawful acts that were approved and performed from 2001 to the present day... ; (ii) would cut off all judicial review of U.S. compliance with the Geneva Conventions ... ; and, most importantly, (iii) would authorize the CIA -- and, for that matter, other agencies, including DoD itself -- to engage in what the President today euphemistically referred to as the CIA's "alternative set of [interrogation] procedures." Those procedures include many techniques that today's Army Field Manual would purport to prohibit for the military. ...

The Administration draft bill would effectively authorize these techniques by conspicuously excluding them from the list of techniques that would constitute war crimes violations of Common Article 3... and also by purporting to provide -- unconvincingly -- that compliance with the McCain Amendment's "shocks the conscience" standard will satisfy the U.S.'s obligations under Common Article 3 ...

But the draft bill would not actually identify these techniques. Such obfuscation would allow the Administration (and Congress) to nominally continue the pretense of U.S. compliance with our treaty obligations, while at the same time immunizing conduct that would appear by any reasonable account to violate the Geneva Conventions' prohibition on all "cruel treatment and torture."

On this score, Dana Priest has a very intriguing article in tomorrow's Washington Post. Priest reports that in addition to the techniques listed above (e.g., waterboarding), the CIA "alternative" techniques may also have included "extreme isolation, slapping, . . . reduced food intake, and light and sound bombardment." ... The most important part of Priest's article is this passage:

In the past year, the CIA has studied more closely the effectiveness of harsh interrogation techniques that it and other agencies have used and concluded that some of those were worth discarding. CIA officials have eliminated some of those techniques and, within the past two months, have begun to consult for the first time with the full Senate and House intelligence committees about creating a new list of techniques. . . . The administration will ask the intelligence committees to give it guidance to draw up a separate, shorter list of harsh techniques it might still employee under certain circumstances. The point, said one senior official, "is to make the program more durable" and not "subject to the pendulum swings" of Congress or the president.

More here.

Posted by Laura at September 7, 2006 07:34 AM