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For Bush, it's interrogate now and face the repercussions later

"What matters to [the Bush administration] is that they have the ability to do what they think they need to do to prevent another attack."

Michael Mello, Vermont Law School professor

A legal battle over how to interrogate and try top al-Qaeda terror suspects is set to rage on for years, despite a high-stakes election season pact between the White House and "rebel" Republicans.

Analysts say a draft law sent to the Senate late last week laying down new rules for military commissions is seeded with future legal and human rights controversies.

So it could still be many months, or perhaps even years, before detainees -- such as the alleged mastermind of the Sept. 11, 2001, terrorist attacks, Khalid Sheikh Mohammed -- are tried or sentenced.

Critics say the new legal framework may still undermine bedrock principles of US and international law, but President Bush maintains it preserves a CIA program which is a "potent tool" in battling terrorism.

The Senate bill prohibits punishments including "flogging ... branding, marking or tattooing on the body or any other cruel or unusual punishment."

But it is the question of what exactly amounts to "cruel and unusual" techniques that is most controversial, and some rights activists have expressed their fear that some of the tactics that infringe the Geneva Conventions could continue to be used.

The White House says a list of permitted interrogation techniques will remain classified.

The bill makes the president his "own judge and jury," said Caroline Fredrickson, Director of the Washington Legislative Office of the American Civil Liberties Union, saying Bush would get "unilateral authority to declare certain torture and abuse legal and sound."

Critics have argued that some techniques used in the past, such as simulated drowning and exposing detainees to extreme temperatures equal torture -- a charge Bush backers reject.

Observers also worry that the bill allows a judge to decide whether statements elicited through "cruel, unusual or inhumane" techniques before last year can be introduced in court.

Other critics are targeting prohibitions on the right of an "enemy combatant" to challenge his confinement.

Republican Senator Arlen Specter said he would hold a hearing on Monday in the Senate Judiciary Committee, which he chairs, to look into the proposed legislation's language on the writ of habeas corpus.

"Most of it is a big improvement," Specter said of the bill in an interview on CNN's Late Edition program on Sunday.

"But there's one part that I vigorously disagree with, and that is taking away the jurisdiction of the federal courts on what we call habeas corpus, which is the great writ that goes all the way back to [the British Magna Carta signed in] 1215," he said.

Defense lawyers are also likely to challenge a provision in the draft law which would allow a military judge to authorize deletion of classified evidence from documents seen by the accused.

Opponents of the bill have two options -- to press for changes before it gets voted out of Congress or to challenge it through the appeals process.

Since Democrats have signaled they won't pay a political price by blocking swift passage ahead of November's elections, appeals right up to the Supreme Court seem most likely.

It is unclear whether those appeals will come before or as cases come to trial -- as happened in the civilian prosecution of would-be al-Qaeda suicide pilot Zacarias Moussaoui -- or whether they would await convictions.

The Supreme Court opened the latest front in the five-year legal war on terror, ruling in June that Bush had overstepped by ordering the special military commissions, which it said infringed the Geneva Conventions.

When Bush went back to the drawing board, some rebel senators -- including former prisoner of war John McCain -- balked at allowing him to write his interpretation of the conventions into law.

Bush supporters say the deal ensures protection for the US interrogators.

The US leader argued after the Sept. 11 attacks that existing legal structures were insufficient to deal with a new kind of enemy.

Interrogators need to coerce information that could save lives in future attacks, officials say.

Vermont Law School professor Michael Mello said the compromise showed the administration was more concerned with protecting its ability to interrogate suspects than in eventual legal repercussions.

"They may, three or four or five years down the road when this gets to the Supreme Court, find that they didn't in fact have authority," he said. "But what matters to them is that they have the ability to do what they think they need to do to prevent another attack."
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