The compromise language gives the
president a dominant -- but not exclusive -- role in
deciding which interrogation methods are permitted by
that provision of the treaty. It also prohibits
detainees from using the Geneva Conventions to
challenge their imprisonment or seek civil damages for
mistreatment, as the administration sought.
The biggest hurdle, Senate sources said, was
convincing administration officials that lawmakers
would never accept language that allowed Bush to
appear to be reinterpreting the Geneva Conventions.
Once that was settled, they said, the White House
poured most of its energy into defining "cruel or
inhuman treatment" that would constitute a crime under
the War Crimes Act. The administration wanted the term
to describe techniques resulting in "severe" physical
or mental pain, but the senators insisted on the word
Negotiations then turned to the amount of time that a
detainee's suffering must last before the treatment
amounts to a war crime. Administration officials
preferred designating "prolonged" mental or physical
symptoms, while the senators wanted something milder.
They settled on "serious and non-transitory mental
harm, which need not be prolonged."
These definitions appear in a section of the
legislation that specifically lists "grave breaches"
of the Geneva Conventions that might bring criminal
For lesser offenses barred by the Geneva Conventions
-- those lying between cruelty and minor abuse,
putting them at the heart of the intraparty dispute --
the draft legislation would give the president
explicit authority to interpret "the meaning and
application" of the relevant provisions in Common
Article 3. It also requires that such interpretations
be considered as "authoritative" as other U.S.
But the language also requires that such
interpretations be published, rather than described in
secret to a restricted number of lawmakers. That
provision was demanded by the dissident lawmakers, who
resented the administration's past efforts to curtail
the number of members who were told of its policies.
The provision also affirms that Congress and the
judiciary can play their customary roles in reviewing
the interpretations, a statement that Senate sources
say the White House vigorously resisted.
A senior administration official, who spoke on the
condition of anonymity, said in an interview that
Bush essentially got what he asked for in a
different formulation that allows both sides to
maintain that their concerns were addressed. "We
kind of take the scenic route, but we get there," the
The New York Times editorial board is suitably pissed:
On other issues [than defendants seeing
evidence against them, which the Administration is
already backing out of], the three rebel senators
achieved only modest improvements on the White House’s
original positions. They wanted to bar evidence
obtained through coercion. Now, they have agreed to
allow it if a judge finds it reliable (which coerced
evidence hardly can be) and relevant to guilt or
innocence. The way coercion is measured in the bill,
even those protections would not apply to the
prisoners at Guantánamo Bay.
The deal does next to nothing to stop the president
from reinterpreting the Geneva Conventions. While the
White House agreed to a list of “grave breaches” of
the conventions that could be prosecuted as war
crimes, it stipulated that the president could decide
on his own what actions might be a lesser breach of
the Geneva Conventions and what interrogation
techniques he considered permissible. It’s not clear
how much the public will ultimately learn about those
decisions. They will be contained in an executive
order that is supposed to be made public, but Mr.
Hadley reiterated that specific interrogation
techniques will remain secret.
Even before the compromises began to emerge, the
overall bill prepared by the three senators had fatal
flaws. It allows the president to declare any
foreigner, anywhere, an “illegal enemy combatant”
using a dangerously broad definition, and detain him
without any trial. It not only fails to deal with the
fact that many of the Guantánamo detainees are not
terrorists and will never be charged, but it also
chokes off any judicial review.
Digby has a nice summary:
So the good news is that these fine
Republicans were all able to sit in Dick Cheney's
Senate office and hash out what "amount of time that a
detainee's suffering must last before the treatment
amounts to a war crime" in the last three days. We can
sleep better tonight knowing that they decided that
the suffering must do "serious and non-transitory
mental harm, which need not be prolonged." Excellent.
And now we know that "cruel or inhuman treatment" that
would constitute a crime under the War Crimes Act is
comprised of "techniques resulting in 'serious'
physical or mental pain, rather than 'severe.'" That's
just the kind of "clarity" they've been looking for.
On with the interrogations.
Oh and they will leave it up to the president to
decide if standing shackled naked in a cold room with
ice water splashed randomly on you for 72 hours is
torture. Or if being forced to walk around on a leash
like a dog or have fake menstrual blood smeared all
over your face is degrading. (I wonder what he'll
The best part is that they might let the prisoners see
classified evidence used against them that's been
redacted or summarized, nobody who was tortured will
be able to sue the government or hold anyone in it
legally liable and there's a nice fat habeas corpus
loophole so these embarrassingly innocent people down
in Gitmo will stay under wraps.
And from the
Washington Post editors:
In short, it's hard to credit the
statement by Sen. John McCain (R-Ariz.) yesterday that
"there's no doubt that the integrity and letter and
spirit of the Geneva Conventions have been preserved."
In effect, the agreement means that U.S. violations of
international human rights law can continue as long as
Mr. Bush is president, with Congress's tacit assent.
If they do, America's standing in the world will
continue to suffer, as will the fight against
This is truly unbelievable. I know I've been hearing people say that St. McCain will do the big Fold, that this was all bullshit kabuki to preserve McCain's maverick reputation and make Senate Republicans look eminently reasonable going into the final stretch of the elections.
Yet I was starting to hold out hope that, for once, McCain and Co. would actually make a real stand, that their principles would prevail against electoral shenanigans. At least they might wrangle with each other too long to actually pass any legislation, I thought.
But that which those of who've watched McCain closely the last year or two feared actually happened. The Republicans stand united against fair trials and for the very things we referred to as "torture" when the
Viet Cong did them to St. John McCain the Sensible Republican.
It was all about image. Scruples had nothing to do with it.
Remember this, all you McCain fans, remember. Because every time I hear anyone say something that the Maverick is anti-torture or is "a good man" or "has morals" or "is worth voting for," I'm going to throw this in your face. He used his signature issue for electoral gain, and shamelessly pretended that he won after giving the Bush Administration the prerogative to torture people and use their confessions in kangaroo courts.
What a scumbag.