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Lawmakers Back Use of Evidence Coerced From
Detainees
By ERIC SCHMITT and TIM GOLDEN
12/17/05 "New
York Times" -- -- WASHINGTON, Dec. 16 - House and
Senate negotiators agreed Friday to a measure that would enable the
government to keep prisoners at Guantánamo Bay indefinitely on the
basis of evidence obtained by coercive interrogations.
The provision, which has been a subject of extensive bargaining with
the Bush administration, could allow evidence that would not be
permitted in civilian courts to be admissable in deciding whether to
hold detainees at the American military prison in Guantánamo Bay,
Cuba. In recent days, the Congressional negotiators quietly
eliminated an explicit ban on the use of such material in an earlier
version of the legislation.
The measure is contained in the same military policy bill that
includes Senator John McCain's provision to ban the cruel, inhuman
and degrading treatment of detainees in American custody worldwide.
Mr. Bush reluctantly embraced Mr. McCain's ban on Thursday. The full
House is expected to approve the compromise bill soon, with the
Senate to follow in the next few days, Congressional officials said.
The juxtaposition of the seemingly contradictory measures
immediately led lawyers for Guantánamo prisoners to assert that
Congressional Republicans were helping to preserve the utility of
coercive interrogations that senior White House officials have
argued are vital to the fight against war against terror.
While the measure would allow the Guantánamo prisoners to challenge
in federal court their status as enemy combatants and to appeal
automatically any convictions and sentences handed down by military
tribunals in excess of 10 years, it would still prevent the
detainees from asking civilian courts to intervene with the
administration over harsh treatment or prison conditions.
Thomas B. Wilner, a lawyer who represents a group of Kuwaiti
detainees at Guantánamo Bay, said in an interview that the new
language would render the McCain restrictions unenforceable at the
Cuban prison. "If McCain is one small step forward, enactment of
this language would be two giant steps backwards," Mr. Wilner said.
Two of the main Senate sponsors of the measure, Lindsey Graham,
Republican of South Carolina, and Carl Levin, Democrat of Michigan,
defended the changes made to the language that the Senate passed
last month, 84 to 14.
Mr. Graham acknowledged the measure's intention to make it possible
to use information obtained by coercive interrogation techniques in
military panels that evaluate whether detainees at Guantánamo are
being rightfully held as "enemy combatants." He argued that the
techniques were not abusive.
He also said that under his measure, the panels would weigh the
value of the intelligence gained from an interrogation against a
judgment on whether the statement was coerced. He said in a
telephone interview with reporters that the amendment would promote
"a balanced approach." A similar rule now applies in the military
commissions that have been established to prosecute terror suspects
at Guantánamo.
Human rights advocates criticized Mr. Levin, the chief Senate
Democratic negotiator, for agreeing to restrict further the legal
rights of Guantánamo detainees. Mr. Levin suggested that he had
settled for the less damaging of two bad outcomes, saying he had
deflected more onerous provisions that House Republicans wanted,
including a demand that interrogators who abused prisoners be
granted immunity from prosecution. Mr. Levin added in a telephone
interview, "I don't think courts will allow coerced evidence in any
proceeding."
The Bush administration has repeatedly considered - and rejected -
explicitly prohibiting the use of evidence obtained by torture in
the military commissions. Most recently, the issue was a major part
of a lengthy internal debate over new rules for the tribunals that
were promulgated on Aug. 31 in response to longstanding criticism in
the United States and overseas that the tribunals are unfair.
Several officials familiar with the internal discussions said State
Department officials and some senior Defense Department aides had
strongly advocated an explicit ban on the use of evidence obtained
by torture in a series of interagency discussions that began last
December.
At one point in that process, the Pentagon official in charge of the
tribunals, Maj. Gen. John D. Altenburg Jr., who is now retired,
proposed barring any "confession or admission that was procured from
the accused by torture," according to parts of a draft document read
to a reporter. The rule defined torture as any act "specifically
intended to inflict severe physical or mental pain and suffering."
The ban was also championed by the counselor of the State
Department, Philip D. Zelikow, two officials said. The deputy
defense secretary, Gordon R. England, also supported the ban in
meetings on the revised commission rules, as did some senior
military officers, said a spokesman for Mr. England, Capt. Kevin
Wensing.
But such a prohibition was opposed by other officials involved in
the debate, including David S. Addington, who was then Vice
President Dick Cheney's counsel and is now his chief of staff. A
spokesman for the vice president said Mr. Addington would have no
comment on his reported role in the policy debates.
Since the drafting of the presidential order that established the
commissions on Nov. 13, 2001, White House officials have sought to
give the commissions wide latitude to consider evidence that would
be inadmissible in civilian courts.
Mr. Addington, who was a primary architect of the presidential
order, argued in the debates earlier this year that by explicitly
prohibiting evidence obtained by torture, the administration would
raise an unnecessary red flag. suggesting at least implicitly that
prisoners in American custody were, in fact, being tortured,
officials said.
Justice Department officials involved in the debates contended that
such a prohibition was not necessary because the matter was already
covered by the Convention Against Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment, a treaty adopted by the
United Nations more than two decades ago and ratified by the United
States in 1994.
Copyright 2005The New York Times Company
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