Bush's bid to unsnarl law on terrorism

Bush said the last 14 Al Qaeda officials – including suspected 9/11 mastermind Khalid Sheikh Mohammed – were recently transferred from CIA custody to the Guantánamo detention camp for possible war-crimes trials.

The move increases pressure on members of Congress to authorize some form of new rules for military commissions. But it remains unclear to what extent Congress will embrace the administration's proposed commission rules.

The draft legislation sent to Congress by the White House includes many of the same controversial provisions featured in the commission rules struck down by the Supreme Court two months ago. Chief among them is a rule that would allow a defendant to be barred from parts of his trial dealing with classified evidence. Although he would continue to be represented in court by a military-appointed defense attorney, the lawyer would be ordered not to reveal the content of the classified evidence to his or her client.

Administration officials say the measure is necessary to protect sensitive intelligence sources and methods during the ongoing war on terror. Critics say it undermines defense efforts and raises fair trial questions by excluding the one individual from the courtroom in the best position to effectively confront the evidence against him.

The administration's military commission bill also allows for the introduction of hearsay evidence and evidence obtained through coercive interrogations, though not torture. And it allows prosecutors to file broad conspiracy charges covering alleged agreements to engage in war crimes, rather than requiring prosecutors to overcome the tougher challenge of proving a defendant took concrete steps toward committing specific atrocities.

On the interrogation front, the administration is asking Congress to clarify federal law in an effort to protect US officials from possible prosecution for alleged violations of Common Article 3 of the Geneva Conventions.

"The need for this legislation is urgent," Bush said. "We need to ensure that those questioning terrorists can continue to do everything within the limits of the law to get information that can save American lives."

Prior to the Supreme Court's decision in June, the US government had taken the position that Common Article 3 did not apply in the war against Al Qaeda.

The Supreme Court disagreed. It ruled that Common Article 3 established a basic level of humane treatment requiring compliance by all signatory nations.

The ruling created concern within the Bush administration because US law provides that any violation of Common Article 3 is a felony. The problem is that while Common Article 3 outlaws acts that are universally condemned, such as murder, rape, and torture, it also forbids "outrages upon personal dignity" and "humiliating and degrading treatment."

Murder, rape, and torture are easily defined, but "outrages upon personal dignity" and "humiliating treatment" could embrace a wide range of human behavior including many of the tactics used to interrogate Al Qaeda suspects. To avoid such potential liability, the administration's bill sets out nine offenses that officials say constitute clear violations of Common Article 3, including murder, torture, rape, and cruel or inhuman treatment.

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