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Detainee Legislation Gives President New Powers


It's MORNING EDITION from NPR News. I'm Steve Inskeep.


And I'm Lynn Neary. The Senate last night passed legislation that grants the president new authority over the interrogation and prosecution of suspects in the war on terror. On a vote of 65 to 34, the Senate gave President Bush much of what he hoped for. It allows the White House to continue to operate CIA prisons overseas, but it places some limitations on how agents can interrogate detainees.

NPR's Ari Shapiro is here to explain. Good to have you with us.


NEARY: Now there's three major parts of this legislation. So let's start with interrogation tactics. What's acceptable now under the law?

SHAPIRO: Well, some parts of it are pretty explicit. For example, murder, torture, rape and so on are not acceptable under the law. These are called grave breaches of the Geneva Conventions. There are other things like cruel, inhuman and degrading treatment where the definition is a little more vague. And some civil liberties groups have been concerned that under this definition the president could authorize things that some people would consider torture.

The defenders of the legislation, for example, Senator John McCain of Arizona, say there's part of this legislation that requires the president to put any of his interpretations of the Geneva Conventions in the public record. So if the president were to authorize interrogation techniques that people would consider torture, McCain says we'll know about it and be able to respond accordingly.

But there's also some question of accountability in this legislation. The War Crimes Act, which is used to prosecute civilians who carry out acts considered war crimes under this law, is narrowed under this new legislation. And so people who have committed offenses that might have been considered violations of the War Crimes Act all the way back to 1997 are now immune from prosecution. So there's some question in here about if people are tortured, if people are interrogated using coercive interrogation tactics, it's unclear what kind of accountability there could be.

NEARY: Now the legislation also lays out rules for war crimes trials at Guantanamo Bay.

SHAPIRO: Yes, it talks about whether secret evidence will be allowed, whether hearsay evidence will be allowed, whether evidence obtained through coercion will be allowed. And I don't want to say that this part of the legislation is insignificant, but relative to the other parts of legislation, it's going to affect a small number of people.

Roughly a dozen people at Guantanamo Bay have now been charged with war crimes and will be tried in these new military commissions. But remember, there are about 450 people total at Guantanamo Bay. The vast majority of those have not been charged with war crimes and would not be tried under these new military commissions. So while the rules are important to the people who will be tried, some of these high-profile detainees such as Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and Abu Zubaida, a high-level al-Qaida figure, those rules will not apply to the vast majority of people at Guantanamo who have not been charged with war crimes.

NEARY: How are people's access to courts affected by the legislation?

SHAPIRO: Well, this is the most dramatic part of the legislation, and it's the part that would affect the largest number of people. The legislation restricts what's known as habeas corpus, which is the right to challenge your detention in court. This was the subject of heated debate yesterday. Senator Arlen Specter, Republican from Pennsylvania, introduced an amendment that would have allowed people to challenge their detention in court. He's afraid that if habeas corpus is denied, the Supreme Court will overturn this legislation, say it's unconstitutional and kick it back to Congress.

As it is, Specter's amendment failed, which means that the 450 people at Guantanamo Bay, people held at CIA prisons overseas, other enemy combatants will not be able to challenge their detention in court.

NEARY: Well, do enemy combatants have any access to courts?

SHAPIRO: There's one very small avenue, which is for the people who are tried in the military commissions. They can appeal their convictions, but only on a narrow ground. They can't introduce new evidence or challenge the facts. They can only challenge the structure of the commissions that brought them there in the first place.

NEARY: So these rules apply to unlawful enemy combatants. But who determines whether someone's an enemy combatant in the first place?

SHAPIRO: This was another dramatic recent change in the legislation, which is that enemy combatants can now be anyone in the U.S. who's a non-citizen. Before, the legislation had the phrase "outside of the United States." That phrase was removed in the last few days. So immigrants-rights groups are now very concerned that some of the many people who have lived here for decades legally may be declared unlawful enemy combatants, sent to prison and be denied the right to appeal their detention.

The law also says that anyone who provided material support to terrorist groups, such as money, could be considered an enemy combatant. And it leaves an opening for enemy combatants to be declared through another competent tribunal established under the authority of the president or the secretary of defense.

So it's sort of a broad power the president has been given and we have yet to see how he may use that.

NEARY: NPR's justice reporter Ari Shapiro. Thanks so much for being with us, Ari.

SHAPIRO: You're welcome.

NEARY: And you can read more analysis of the legislation at npr.org. Transcript provided by NPR, Copyright NPR.

Lynn Neary
Lynn Neary is an NPR arts correspondent covering books and publishing.
Ari Shapiro
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.