Detainee Treatment—Proposed Legislation

President Bush’s plan for trying the terrorism detainees at Guantanamo Bay and elsewhere is receiving a cold reception on Capitol Hill. “Top Republicans on the Senate Armed Services Committee strongly denounced the White House’s plan to try suspects held at Guantanamo Bay, which critics say could allow abusive interrogations and deprive suspects of basic rights.”^[1] As Republican Senator Lindsey Graham said of President Bush’s proposal, “how many more times do we need to create legislation that's defective, that's going to confuse people, that's got not a snowball's chance in hell of passing Supreme Court muster?”^[2]

President Bush’s plan would “narrowly define the Geneva Conventions’ requirement for humane treatment of prisoners, arguing it is essential to protect CIA interrogators from prosecution.”^[3] Regardless of Congress’s reception of his plan, however, there really isn’t much leeway for President Bush to define protections under the Geneva Conventions. The Supreme Court decision that led to the need to address detainee treatment, Hamdan v. Rumsfeld, ruled that the treatment provisions of the Geneva Conventions are Customary International Law,^[4] meaning generally that they are binding on all nations, regardless of whether a country is party to the Conventions or not.^[5]

Armed Services Committee Chairman John Warner “told reporters the committee was to vote [today] on a bill he crafted with [Sen.] Graham and Arizona Republican Sen. John McCain to give suspects more rights than Bush’s bill and maintain the Geneva Convention’s standards for humane treatment.”^[6] Senator Graham also dismissed the administration’s claims that CIA operations would fail under the bill by “asking if the United States was going to be ‘the first country in the world that changes the Geneva Conventions so that secret police programs of those nations would be okay?’”^[7]

The House of Representatives Armed Services Committee, however “pushed through a bill [sponsored by Rep. Duncan Hunter] that largely mimicked the White House legislation, including a provision that would bar a defendant’s access to evidence used against them if doing so would expose classified information.”^[8] The House is expected to pass that legislation next week.^[9]

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[1] Vicki Allen, Senate Republicans Defy Bush Over Terrorism Trials, Reuters (via Yahoo!), Sep. 13, 2006.
[2] Id.
[3] Id.
[4] See Hamdan v. Rumsfeld 548 U.S. ___, at 71 (2006).
[5] See, generally, Legal Information Institute, Wex: International Law Cornell, last visited Sep. 14, 2006.
[6] Allen, supra note 1.
[7] Id.
[8] Ann Plummer Flaherty, No Agreement Reached Over Terrorism Trials, AP (via Miami Herald), Sep. 14, 2006.
[9] Id.