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Interrogation Techniques Rejected By Military Get Bush Approval:

By Adam Liptak

09/08/06 "
New York Times" -- -- NEW YORK Many of the harsh interrogation techniques just repudiated by the Pentagon would be made lawful by legislation put forward the same day by the Bush administration, and the U.S. courts would be forbidden from intervening.

The proposal is in the last 10 pages of an 86-page bill devoted mostly to military commissions, and it is a tangled mix of cross-references and pregnant omissions.

But legal experts say it adds up to an apparently unique interpretation of the Geneva conventions, one that could allow CIA operatives and others to use many of the very techniques disavowed Wednesday by the Pentagon, including stress positions, sleep deprivation, extreme temperatures and perhaps even simulated drowning.

"It's a Jekyll-and-Hyde routine," Martin Lederman, who teaches constitutional law at Georgetown. In effect, the administration is proposing to write into law a two-track system that has existed as a practical matter for some time.

So-called high-value detainees held by the CIA have been subjected to very tough interrogation in secret prisons around the world. More run-of-the-mill prisoners held by the Defense Department have, for the most part, faced milder questioning, although human rights groups say there have been widespread abuses.

The new bill would continue to give the CIA the substantial freedom it has long enjoyed, while the revisions to the Army Field Manual announced Wednesday would further restrict military interrogators. The legislation would leave open the possibility that the military could revise its own standards to allow the harsher techniques.

John Yoo, a law professor at the University of California, Berkeley, who as a Justice Department official helped develop the administration's early legal response to the terrorist attacks of Sept. 11, 2001, said the bill would provide people on the front lines with important tools.

"When you're fighting a new kind of war against an enemy we haven't faced before," he said, "our system needs to give flexibility to people to respond to those challenges."

In June, in Hamdan v. Rumsfeld, the U.S. Supreme Court ruled that a provision of the Geneva conventions concerning the humane treatment of prisoners applied to all aspects of the conflict with Al Qaeda. The new bill would keep the courts from that kind of meddling, Yoo said.

"There is a rejection of what the court did in Hamdan," he said, "which is to try to judicially enforce the Geneva conventions, which no court had ever tried to do before."

The proposed legislation takes pains to try to ensure that the Supreme Court will not have a second opportunity. "The act makes clear," it says in its introductory findings, "that the Geneva conventions are not a source of judicially enforceable individual rights."

Though lawsuits will almost certainly be filed challenging the bill should it become law, most legal experts said Congress probably had the power to restrict the courts' jurisdiction in this way.

A senior intelligence official said the new legislation, if enacted, would make it clear that the techniques used by the CIA on senior members of Al Qaeda who had been held abroad in secret locations would not be prohibited and that interrogators who engaged in those practices both in the past and in the future would not face prosecution. But the official, who spoke on the condition of anonymity, would not discuss the techniques the agency has used or is prepared to use.

Common Article 3 of the Geneva conventions bars, among other things, "outrages upon personal dignity, in particular, humiliating and degrading treatment." The administration says that language is too vague.

The proposed legislation, said Peter Margulies, a law professor at Roger Williams University, "seems to be trying to surgically remove from our compliance with Geneva the section of Common Article 3 that deals with humiliating and degrading treatment."

NEW YORK Many of the harsh interrogation techniques just repudiated by the Pentagon would be made lawful by legislation put forward the same day by the Bush administration, and the U.S. courts would be forbidden from intervening.

The proposal is in the last 10 pages of an 86-page bill devoted mostly to military commissions, and it is a tangled mix of cross-references and pregnant omissions.

But legal experts say it adds up to an apparently unique interpretation of the Geneva conventions, one that could allow CIA operatives and others to use many of the very techniques disavowed Wednesday by the Pentagon, including stress positions, sleep deprivation, extreme temperatures and perhaps even simulated drowning.

"It's a Jekyll-and-Hyde routine," Martin Lederman, who teaches constitutional law at Georgetown. In effect, the administration is proposing to write into law a two-track system that has existed as a practical matter for some time.

So-called high-value detainees held by the CIA have been subjected to very tough interrogation in secret prisons around the world. More run-of-the-mill prisoners held by the Defense Department have, for the most part, faced milder questioning, although human rights groups say there have been widespread abuses.

The new bill would continue to give the CIA the substantial freedom it has long enjoyed, while the revisions to the Army Field Manual announced Wednesday would further restrict military interrogators. The legislation would leave open the possibility that the military could revise its own standards to allow the harsher techniques.

John Yoo, a law professor at the University of California, Berkeley, who as a Justice Department official helped develop the administration's early legal response to the terrorist attacks of Sept. 11, 2001, said the bill would provide people on the front lines with important tools.

"When you're fighting a new kind of war against an enemy we haven't faced before," he said, "our system needs to give flexibility to people to respond to those challenges."

In June, in Hamdan v. Rumsfeld, the U.S. Supreme Court ruled that a provision of the Geneva conventions concerning the humane treatment of prisoners applied to all aspects of the conflict with Al Qaeda. The new bill would keep the courts from that kind of meddling, Yoo said.

"There is a rejection of what the court did in Hamdan," he said, "which is to try to judicially enforce the Geneva conventions, which no court had ever tried to do before."

The proposed legislation takes pains to try to ensure that the Supreme Court will not have a second opportunity. "The act makes clear," it says in its introductory findings, "that the Geneva conventions are not a source of judicially enforceable individual rights."

Though lawsuits will almost certainly be filed challenging the bill should it become law, most legal experts said Congress probably had the power to restrict the courts' jurisdiction in this way.

A senior intelligence official said the new legislation, if enacted, would make it clear that the techniques used by the CIA on senior members of Al Qaeda who had been held abroad in secret locations would not be prohibited and that interrogators who engaged in those practices both in the past and in the future would not face prosecution. But the official, who spoke on the condition of anonymity, would not discuss the techniques the agency has used or is prepared to use.

Common Article 3 of the Geneva conventions bars, among other things, "outrages upon personal dignity, in particular, humiliating and degrading treatment." The administration says that language is too vague.

The proposed legislation, said Peter Margulies, a law professor at Roger Williams University, "seems to be trying to surgically remove from our compliance with Geneva the section of Common Article 3 that deals with humiliating and degrading treatment."

Copyright 2006 the International Herald Tribune

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