A Guide to the Terrorism Bills

By Massimo Calabresi

Much of Bush's war on terrorism has been waged in the shadows. But with secret surveillance and detention programs now exposed, the Administration has been forced to reckon with the lights, and the law. The President has offered two bills to put his programs on a legal footing. So far, the strongest opposition has come from his own party.

SPYING

BUSH'S BILL would allow--but not require--the President to seek approval for the National Security Agency's (NSA's) no-warrant electronic-surveillance program from the Foreign Intelligence Surveillance Act (FISA) court. Bush has said he would seek the court's approval for the program, which he says targets only suspected terrorists calling or e-mailing to or from the U.S. Current law requires the government to get the FISA court's permission for each device--rather than each suspect--to be wiretapped; Bush claims his wartime powers override that law. His bill would send all legal challenges pending against the no-warrant program to the FISA court and allow for appeals up to the Supreme Court. It would add penalties for leaking information about official surveillance programs. The existence of the NSA program was revealed by the New York Times.

CONGRESSWOMAN HEATHER WILSON'S BILL would allow the targeting of individuals, not devices, but would require eavesdroppers to get a warrant within weeks of doing so. The bill would require that Congress be given written notification and justification for no-warrant wiretaps. Most Senate Republicans support Bush's plan, but leading House Republicans back Wilson, a New Mexico Republican, who chairs the subcommittee that oversees eavesdropping.

DEMOCRATIC BILLS in both chambers would strengthen the 1978 law and would try to make Bush comply with it.

QUESTIONING

BUSH'S BILL seeks to set the rules for future treatment of detainees in the war on terrorism. Arguing that some of the language of the Geneva Conventions regulating the treatment of prisoners of war is too vague--like the prohibition in Common Article 3 against "outrages upon personal dignity"--Bush would remove Geneva references from the U.S.'s 1996 War Crimes Act, which provides penalties up to death for abuse of detainees. Instead, he would identify nine violations: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing great suffering or serious injury, rape, sexual assault or abuse and taking hostages. The bill states that these prohibitions "shall fully satisfy United States obligations" under Geneva. It would apply retroactively to all detentions after 9/11 to provide some legal protection to U.S. jailers and interrogators who dealt with detainees between then and the putative passage of the bill.

JOHN MCCAIN'S BILL would protect interrogators from civil suits, would punish them only for grave breaches of the Geneva Conventions and would increase rights of appeal to the U.S. courts. It would preserve references to the Geneva Conventions in the War Crimes Act. The Arizona Senator and his co-sponsors, John Warner and Lindsey Graham, argue that if the U.S. interprets Geneva to its liking, other countries will too, endangering American troops if they are captured.

PROSECUTING

BUSH'S BILL on questioning detainees would create military courts to try foreign detainees in the war on terrorism. The bill would expand the definition of who can be tried to include those charged with conspiracy and other lesser offenses. It would also establish the laws under which they would be tried--this in response to the Supreme Court's June ruling that the original tribunals Bush established after 9/11 did not comply with Geneva's requirement of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." The new courts would afford defendants the right to a civilian lawyer, an insanity defense and a copy of the proceedings, with classified information removed. But coerced statements could be accepted as evidence, and detainees could be denied access to classified intelligence presented to jurors to build the case against them. The bill would set strict limits on detainees' access to U.S. civilian courts.

MCCAIN'S BILL would prohibit the introduction of coerced statements and would allow defendants to see the evidence used against them. Its sponsors argue that statements obtained under duress are not reliable and that no one can properly defend himself without fully knowing what he is accused of. Bush has the Senate leadership and House Republicans on his side. Warner, McCain and Graham have moderate Republican supporters and most, if not all, Senate Democrats.