[prisoner-rights] USA: Senate leaders reject explicit redefinition of Geneva Conventions

But Disappointing Compromise Weak on Enforcement, Eliminates Access to
Courts for Victims of Abuse

(Washington, D.C., September 22, 2006) -- Key Republican Senators have
rejected the Bush administration's attempt to rewrite the humane treatment
requirements of the Geneva Conventions, but have made key parts of the
conventions effectively unenforceable, Human Rights Watch said today.

"Today's agreement was a disappointing compromise, even though it rejected
some of the Bush administration's most outrageous proposals," said Kenneth
Roth, Executive Director of Human Rights Watch. "From now on, CIA
interrogators who use abusive practices like waterboarding, hypothermia
and extended sleep deprivation could face prosecution if the government
chooses, but victims of abuse are denied access to the courts."

The administration had pushed hard for an explicit redefinition of the
humane treatment standards under Common Article 3 of the Geneva
Conventions, claiming that the CIA's secret prison program could not
continue without it. Senate negotiators rejected that demand, while
accepting a potentially damaging provision that delegates authority to the
president to promulgate regulations interpreting certain elements of
Common Article 3.

The agreement also rejects the administration’s attempt to
decriminalize all interrogation practices short of torture, and makes
clear that engaging in cruel and inhuman treatment will be a prosecutable
war crime. However, the definition of what is cruel and inhuman is
narrowly drawn. While it should be sufficient to prohibit the most abusive
CIA techniques, the administration may try to interpret it as allowing
certain humiliating and degrading practices banned by Common Article 3.

The agreement includes 'court-stripping' provisions that prevent detainees
in U.S. custody anywhere around the world from challenging the legality of
their detention or their treatment. Innocent detainees could be locked up
forever, without ever having a chance to have their case reviewed by an
independent court. And victims of the very abusive practices that the
legislation outlaws would be forever precluded from challenging -- and
bringing to light -- those abuses. Courts would have no power to stop even
ongoing torture.

"It is essential that the bill be amended to ensure that all detainees
have access to the courts to challenge the legality of their detention and
their treatment," said Roth.

Ironically, suspects like Khalid Sheikh Mohammad would have more rights
than most detainees under the new bill. High-level detainees would be
brought before the military commissions created by this legislation,
confronted with the charges against them, and given an opportunity to
respond. But many detainees would be locked up forever and never given a
chance to challenge their detention or end abusive interrogations.

"Rights without the possibility of enforcement can too easily become no
rights at all," said Roth.

The legislation will preclude any person from ever invoking the Geneva
Conventions in any suit against the U.S. government. This means that those
subjected to the military commissions created by this legislation will be
prevented from raising the claim that the trials do not satisfy the fair
trial standards of Common Article 3 -- one of the key elements of the
Hamdan case striking down the old military commissions.

The legislation agreed to yesterday and introduced into Congress today
also authorizes the administration to try detainees in newly created
military commissions. While the rules largely track the Uniform Code of
Military Justice (UCMJ), and include improvements on the administration's
initial proposal, they also include many disturbing deviations from the
UCMJ. Positive changes from the administration's proposal include rules
ensuring that defendants have access to the same evidence presented to the
factfinder and that they not be convicted based on secret evidence, as the
administration had demanded.

For the first time in U.S. history, however, Congress would allow into
evidence statements derived through cruel, inhuman and degrading
interrogation, if the interrogations were carried out prior to the passage
of the McCain amendment last year, which reaffirmed prohibitions on such
practices. While the compromise added certain protections not present in
the administration's initial proposal -- such evidence would have to be
determined to be reliable by an independent judge -- the allowance of such
evidence, when combined with the liberal rules on hearsay included in the
bill means that a defendant could be convicted based on a second- or
third-hand summary of evidence obtained through practices like
waterboarding, extended sleep deprivation or induced hypothermia --
without any opportunity for the defendant to confront his accuser.

"The bill would still allow a suspect to be convicted and executed based
on a coerced confession," said Roth.

Human Rights Watch said that the draft legislation also would allow the
government to protect the "sources, methods or activities by which the
United States acquired evidence" if those practices are classified.
Because the government has said that all 'alternative' interrogation
procedures are classified, this provision could be used to prevent
military commission defendants from effectively challenging the use of
torture or mistreatment.

Human Rights Watch Press release