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From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.
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And I'm Michele Norris.
A private White House document sets out the administration's position on two wartime controversies. One has to do with detainees, the other with Americans accused of war crimes. This draft legislation is not yet public.
NPR has obtained a copy and NPR's Ari Shapiro has our report.
ARI SHAPIRO reporting:
One paragraph in this proposal would affect any detainee who comes before a U.S. court. The draft legislation says no one can invoke the Geneva Conventions as a source of rights in any court of the United States. Then it says this does not affect the obligations of the United States under the Geneva Conventions.
In other words, as Wake Forest law professor Bobby Chesney describes it -
Professor BOBBY CHESNEY (Wake Forest University): I hear them drafting something that's designed to show that we remain fully bound by the Geneva Conventions. You just can't litigate on that basis.
SHAPIRO: Human Rights First attorney Avi Cover says that could pull the rug out from under many of the detainees whose cases are in civilian courts right now.
Mr. AVI COVER (Human Rights First): What this is saying is that an individual whose rights or protections under the Geneva Conventions have been violated would no longer have a remedy in court.
SHAPIRO: The suggestion that enemy combatants could claim Geneva violations in court came from the Supreme Court's decision in Hamdan versus Rumsfeld. Berkeley law Professor John Yoo, who worked in the Bush Justice Department, says this is the administration's effort to counter the Hamdan ruling.
Professor JOHN YOO (University of California at Berkeley): Before Hamdan no federal court had ever held that the Geneva Conventions could be enforced by our enemies in our courts against us.
SHAPIRO: Yoo sees this proposal as reestablishing the pre-Hamdan status quo.
The other controversial proposal in this document suggests amendments to the War Crimes Act. That's the law used to prosecute people in civilian court for war crimes. The proposed amendment lists eight specific acts that would constitute violations of the amended law.
Prof. CHESNEY: So the question that matters is well, what would not be covered now that arguably, at least, would've been covered before?
SHAPIRO: Law professor Bobby Chesney says the answer is -
Profesor CHESNEY: This would exclude the phrase, outrages upon personal dignity. In particular, humiliating and degrading treatment.
SHAPIRO: The list of offenses would include torture, rape, murder and other violent crimes. But the phrase, humiliating and degrading treatment, which the Bush administration has criticized as vague, would be gone. David Rifkin worked in the Justice Department and White House under President Reagan and the first President Bush. He sees this as an effort to make the law specific and enforceable.
Mr. DAVID RIFKIN (Former Justice Department Official): I really think sort of that people are criticizing it. And no matter how well meaning, I'm afraid they're looking more at the symbolism involved than the reality of let's get the set of tools to go after the bad guys and be able to do it effectively.
SHAPIRO: He says as currently written, nobody could be convicted under the law's ambiguous language. The White House proposal would make the offenses limited and explicit. Notre Dame law Professor Mary Ellen O'Connell says that can only do harm.
Professor MARY ELLEN O'CONNELL (Notre Dame University): Why are we making these changes? Is the United States not capable of treating its detainees in a fashion that's consistent with Common Article 3, to protect their human dignity, to refrain from humiliating treatment?
SHAPIRO: Common Article 3 contains the Geneva Convention's prohibition against humiliating and degrading treatment. O'Connell says if the U.S. wants to recover from the black eye of Abu Ghraib prison, narrowing the scope of the War Crimes Act is not the way to do it. Congress originally passed the law in the mid-'90s. Nobody's been prosecuted under it, but it's taken on new significance since the U.S. started fighting in Iraq and Afghanistan.
The law applies to civilians. That includes contractors, CIA officers and former military personnel. Members of all of those groups have been tied to allegations of detainee abuse. According to this draft proposal, the amended War Crimes Act would be retroactive to September 11, 2001. Meaning anyone who's committed these crimes since 9/11 would be held to the new standard, not the old one.
Ari Shapiro, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
