Amnesty International USA is pulling out the stops in its denunciation of the compromise reached Thursday by the White House and Senators McCain, Warner, and Graham as "a betrayal of the America we believe in." -- Calling on all supporters to telephone senators immediately, AI USA President Larry Cox said Friday that "[t]he soul of our nation is jeopardy." -- "No human rights activist can remain on the sidelines in the days ahead. . . . Everything we believe in is on the line." -- An analysis published Friday by Byron York in the rightwing National Review online indicated that Cox is right, proclaiming the deal (negotiated in the vice president's office in the Capitol surely by infamous Cheney aide David Addington, though this has not been reported anywhere) a win for the White House. -- So did an endorsement of the deal posted Saturday by the Wall Street Journal's notorious editorial staff. -- In a news analysis, the New York Times, which has already criticized it in an editorial, lacerated the deal as "a series of interlocking paradoxes." -- The 94-page measure "would impose new legal standards that it forbids the courts to enforce. It would guarantee terrorist masterminds charged with war crimes an array of procedural protections. But it would bar hundreds of minor figures and people who say they are innocent bystanders from access to the courts to challenge their potentially lifelong detentions. And while there is substantial disagreement about just which harsh interrogation techniques the compromise would prohibit, there is no dispute that it would allow military prosecutors to use statements that had been obtained under harsh techniques that are now banned." -- The Times quoted Joseph Margulies, author of Guantánamo and the Abuse of Presidential Power (2006), who said that for "the first time in U.S. history . . . the lawfulness of a persons detention is based on evidence secured by torture that's not shared with the prisoner, that he has the burden to rebut and without the assistance of counsel." ...
[An appeal from Amnesty International USA President Larry Cox]
September 22, 2006
Yesterday, President Bush and several members of the Senate struck a deal on human rights. In the process, they dealt away America's commitment to fundamental human rights principles.
Make no mistake about it, this deal is a betrayal of the America we believe in. No human rights activist can remain on the sidelines in the days ahead. Call on your Senator to oppose these dangerous provisions. We are literally days away from action in Congress on a proposal to:
Abandon the rule of law and give the President the freedom to interpret the Geneva Conventions any way he sees fit.
Provide immunity to those responsible for past human rights abuses.
Exempt from prosecution those who authorize treatment traditionally considered torture.
Strip detainees of access to US courts.
The soul of our nation is in jeopardy. Everything we believe in is on the line. That's why we're mobilizing the entire Amnesty community. We're going into action today and we won't stop until every last Senator has made it clear whether he or she is willing to stand up for the America we believe in.
Please act today. Those behind this dangerous deal are doing everything they can to quickly build momentum. We have to break that momentum and we have to do it now.
We implore you to call Congress immediately.
If America renounces the Geneva Conventions like President Bush wants to do, nations all over the world will follow. American soldiers will be placed in greater threat of torture and cruel treatment when captured, not just by one or two rogue nations, but by many nations that follow America's lead.
Call 1 800 AMNESTY and our operators will connect you to your official or call the Congressional switch board directly at 202-224-3121. Let the person on the phone know that you are a constituent, and tell them that the deal President Bush has struck is a betrayal of the America you believe in. Ask your Senators and Representative to stand firm in defense of human rights.
After you've made your call, tell report back on how it went here.
Amnesty International USA
THE DETAINEE DEAL: THE WHITE HOUSE WON -- AND SO DID McCAIN
By Byron York
** With Republicans together, the pressure is now on Democrats. **
September 22, 2006
The detainee-treatment deal announced late yesterday by Sens. John McCain, Lindsey Graham, John Warner, and the White House nearly happened ten days ago. By September 13, negotiations had been underway for some time, and, according to a source aligned with the McCain/Graham/Warner camp, the two sides had basically agreed that there would be no clarification, or redefinition -- depending on which side you listened to -- of the Geneva Conventions. Instead, a new bill would specify illegal practices in treatment of prisoners under the War Crimes Act, as the senators had wanted.
We were at a point where they said, OK, well send you language, says the source. Then [National Security Adviser Stephen] Hadley called and said they couldnt do it. The delay -- lawmakers still arent sure what it was about -- lasted until last Sunday, when Hadley ran into both McCain and Graham in green rooms before the Sunday talk shows. The men talked. On television, Hadleys statements were conciliatory, and the negotiations started to move to a more serious plane. We were sending language back and forth all week, the source says. By Thursday, the negotiators spent hours in the vice presidents office in the Capitol (minus the vice president) before reaching the final agreement.
Who won? Before the final deal came out, there had been speculation that the White House had blinked in the much-hyped confrontation. By the end, though, representatives of both sides professed satisfaction. I think there is every reason for both sides to be happy, the source says. This was a situation where both the Congress and the administration shared a common objective, Hadley told reporters afterward. And what we did in a fairly creative way was come up with ways that we could all support to achieve that objective.
Is one or the other -- or both -- spinning? Perhaps a little, but it does appear that both sides did, in fact, get the main things they wanted. And that raises questions about whether the showdown was ever quite as fundamental as the hype suggested. The Republican dissenters never wanted to cripple the CIAs interrogation program -- a program hated by many of the administrations critics on the left. Rather, they wanted to work out a way to make most of the program legal using existing American law, not the Geneva Convention. And in that, they appear to have succeeded.
During a conference call after the senators announced the deal on Capitol Hill, Hadley said the proposed legislation satisfied President Bushs number-one concern. The president said that his sole standard with respect to Common Article III [of the Geneva Conventions] was going to be whether the CIA would be able to go forward with a program for questioning terrorists, Hadley said. That program has saved lives, both here at home, and saved lives on the battlefield.
During the negotiations, Bush had issued a forceful threat to end the program if Congress did not give him what he wanted. Now, Hadley said, that wont be an issue. The program will go forward, he explained, and the men and women who are asked to carry out that program will have clarity as to the legal standard, will have clear congressional support, and will have legal protections as we ask them to do this difficult work.
How did that come about, giving the president what he wanted while still addressing McCain/Graham/Warners concerns? The key to the deal was the decision to have Congress define, in U.S. law, what are called grave breaches of the Geneva Convention. We recognized that the president has the authority to interpret treaties, says the source aligned with McCain/Graham/Warner, but Congress now has the authority to define grave breaches. In doing so, the negotiators enumerated nine offenses that everyone agreed constituted a grave breach of the treaty: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, rape, causing serious bodily injury, and sexual assault or abuse, and taking hostages.
Some are quite clear. Rape is rape, and murder is murder. But what does cruel or inhuman treatment mean? There was a lot -- a lot -- of negotiation about that. For example, the two sides haggled over the meaning of severe mental pain versus serious mental pain. The senators maintained that serious was the more serious term, and they won. What that will mean in practice is not entirely clear, which is probably what both sides intended.
But what is clear is that, after defining grave breaches, Congress gave the administration significant leeway to define non-grave breaches of the Geneva Conventions. Grave breaches are crimes, the source says. Non-grave breaches are something else. . . . We are going to spell out grave breaches, and then it is up to the administration to come up with sanctions for violations that are less than grave breaches.
That could include many, if not most, of the techniques that the administration has used in the CIA interrogation program. For example, both sides appear to believe that the agreement permits the CIA to continue to use sleep deprivation, cold rooms, and other such techniques. On the other hand, the status of the most notorious of those techniques, waterboarding, is not quite clear. When a reporter asked Hadley whether waterboarding constituted a grave breach under the new agreement, he answered, We are not going to get into discussions of particular techniques. A few seconds later, he added, for purposes of complying with our international obligations under international law, thats something that the president will clarify by executive order.
For their part, however, members of the McCain/Graham/Warner camp believe that the use of waterboarding will stop. We have a high degree of confidence that those things, going forward, will not occur, the source says.
Whatever happens, the public will likely know about it. According to the proposed legislation, the president will define those non-grave breaches in a series of executive orders. Those orders would then be published in the Federal Register, meaning the policy would be public and subject to public scrutiny -- and debate.
Affirming the presidents authority to define non-grave breaches also appears to answer White House concerns about Americans being prosecuted for actions that might constitute offenses to various world courts and human-rights bodies. The McCain/Graham/Warner side early on recognized that the White House had a powerful point when it raised the possibility, in one participants words, that a liberal jurist would say that a female interrogator of a Muslim male is a grave breach. By writing the presidents authority to define those situations into law, that possibility seems to have gone away.
So, too, has the possibility that any person will be able to use accusations of violations of the Geneva Conventions as a basis for a court action against, say, a CIA employee or the U.S. government. There is no private right of action, the source said. No person may invoke the Geneva Convention or any protocols thereto in any habeas or civil action against the United States.
SECRET EVIDENCE STAYS SECRET
While it appears that most of the drawn-out negotiations concerned the grave-breaches issue, the fight was also about so-called secret evidence and whether it could be used in congressionally-approved military commissions. In the end, the answer is: yes. A provision dealing with classified evidence makes sure that no sensitive intelligence will have to be shared with terrorists or their lawyers, Hadley told reporters after the deal was announced. The bar is very high. There will not be -- the terrorists will not have access to classified information.
But both sides agreed that there are ways, in trials before military commissions, to give defendants what Hadley called the substance of the evidence against them without handing over classified information. To the extent there is exculpatory evidence that is involved, that will be provided to them, but in an unclassified form, Hadley said. But in all cases, he added, information about sources and methods, which he called the most important issue in the evidence debate, will remain secret.
The deal seemed to satisfy Sen. Graham, who has been the leading figure in the fight over evidence. We struck a great balance, Graham told reporters at a news conference after the deal was made. We need to be very clear that, in prosecuting the terrorists during a time of war, we do not have to reveal our sources and methods to protect us, our classified procedures. . . . But if the government decides to provide information to the jury that would result in a conviction, sending someone to jail for a long period of time, or to the death chamber, an American trial must allow that person to know what the jury found them guilty of so they can confront the evidence.
WHAT WILL DEMOCRATS DO NOW?
During the long negotiations between the Republican senators and the White House, Democrats were content to stay out of the issue, saying instead that they stood with McCain against the abuse of detainees. Now, however, there is a specific agreement, and McCain is on board, as well as Graham and Warner. What will Democrats do now?
There are early indications that some of their constituency groups will pressure them to oppose the legislation. Not long after the deal was made, the American Civil Liberties Union issued a press release denouncing it. This is a compromise of Americas commitment to the rule of law, Caroline Fredrickson, the head of the ACLUs Washington legislative office, said in a statement. The proposal would make the core protections of Common Article 3 of the Geneva Conventions irrelevant and unenforceable. It deliberately provides a get out of jail free card to the administrations top torture officials, and . . . the president would have the authority to declare what is -- and what is not -- a grave breach of the War Crimes Act, making the president his own judge and jury.
Late Thursday, yet another source in the McCain/Graham/Warner camp was asked whether he was concerned with the ACLUs opposition. Not at all, he answered. Politically, the White House -- and McCain, too, as he courts conservatives in hopes of winning the 2008 Republican presidential nomination -- might be quite happy to have the ACLU against them. But for Democrats, the ACLU means a political headache.
The New York Times also joined in the criticism, not just of the proposed bill, but of Democratic passivity. The Democrats have largely stood silent and allowed the trio of Republicans to do the lifting, the Times editorialized. Its time for them to either try to fix this bill or delay it until after the election.
Finally, early reaction from the left-wing blogosphere, a growing player in Democratic politics, was wholly negative. Not only was the deal bad, some bloggers said, but Democrats were cowardly for staying out of the debate. McCain sells out the country and Democrats look like crap, wrote the popular blogger Atrios. On the even more popular Dailykos site, a featured writer said that McCain and his allies had knuckled under to President Bush, and it would be a terrible mistake for Democrats to follow their lead. Thats no compromise, all you principled GOP rebels, the blogger wrote. Its capitulation. Lay down your much-vaunted integrity and take up your rubber stamps.
So now, six weeks before the midterm elections, it is up to Democrats to take a position on the new detainee deal. Will they continue to stand with McCain and support the proposal? Or will they listen to their interest groups and oppose it? The answer they choose could make a very, very big difference in November.
Byron York, NRs White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why Theyll Try Even Harder Next Time.
Review and Outlook
AN ANTITERROR VICTORY
Wall Street Journal
September 23, 2006
The details of this week's compromise on detainee treatment between the White House and a small group of Senators led by John McCain are complicated. But the upshot of the agreement is simple and welcome: Aggressive CIA interrogations of such high-level al Qaeda prisoners as Khalid Sheikh Mohammed will be able to continue.
The CIA program was thrown into legal limbo by the Supreme Court's June ruling in Hamdan v. Rumsfeld, which said that Common Article 3 of the Geneva Conventions applies to our conflict with al Qaeda. It was a bad ruling, since Article 3 is intended to apply to civil wars. But its vague prohibitions against "humiliating" and "degrading" treatment nonetheless became the law of the land, exposing CIA interrogators to potential legal jeopardy for conduct as benign as using women to question Muslim detainees.
So the White House went to Congress asking, among other things, for help in clarifying what terms like "humiliating" and "degrading" actually mean. Senator McCain and his allies objected that this would be tantamount to "rewriting" the Geneva Conventions. But their objection wasn't very convincing, since every country in the world already interprets Article 3 and somebody in the U.S. has to do so in real-world situations; legal clarity is better than leaving that job to activist judges and lawyers. In the end, the Senators came most of the way toward the White House position.
Congress will specify what it considers "grave" breaches of Geneva -- such as torture and cruel and inhuman treatment. But it will be up to the Executive Branch -- with Congress's advance blessing -- to go ahead and issue a public Executive Order defining "non-grave" breaches. This isn't exactly the full-throated Congressional endorsement that CIA interrogators ought to be able to expect. But it is still an unprecedented acknowledgement that some forms of aggressive interrogation are both necessary and permissible in the war on terror.
To be more specific, it's a fair bet that waterboarding -- or simulated drowning, the most controversial of the CIA's reported interrogation techniques -- will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster. This is not about "torture" or even "abuse," as some Administration critics dishonestly charge, but about being able to make life uncomfortable for al Qaeda prisoners who have been trained to resist milder forms of interrogation.
We're glad Mr. McCain came around to blessing a deal that will allow interrogations to continue. But we can't say his behavior in this affair has been a profile in political courage. Since the Abu Ghraib scandal he's been vaguely and irresponsibly suggesting that the CIA was engaging in unconscionable behavior. But when offered a chance to be specific about which interrogation techniques he really rejects, he punted the ball back to the White House.
Much the same can be said about many of Mr. McCain's colleagues, who have been demanding for decades that Congress be consulted on an ever-expanding range of defense and foreign-policy issues, only to run at the first hint of controversy. Their behavior shows once again why the Founders were right to vest the majority of war-fighting powers with the executive branch.
So it will soon be up to the White House to follow through and flesh out the legal details. This won't be a politically easy task, given the way such fine lawyers as Jay Bybee and John Yoo have been slimed as "pro-torture" for grappling with these issues in the past. The ACLU and media liberals are already attacking the deal and will look for ways to block it. But President Bush understands the need for legal clarity, and we trust he'll see that the job gets done.
This will be a service to the American public and to future Presidents of both parties -- perhaps even to Mr. McCain. No matter their rhetoric now, they will surely be glad to have aggressive interrogations as one antiterror tool.
DETAINEE DEAL COMES WITH CONTRADICTIONS
By Adam Liptak
New York Times
September 23, 2006
The compromise reached on Thursday between Congressional Republicans and the White House on the interrogations and trials of terrorism suspects is, legal experts said yesterday, a series of interlocking paradoxes.
It would impose new legal standards that it forbids the courts to enforce.
It would guarantee terrorist masterminds charged with war crimes an array of procedural protections. But it would bar hundreds of minor figures and people who say they are innocent bystanders from access to the courts to challenge their potentially lifelong detentions.
And while there is substantial disagreement about just which harsh interrogation techniques the compromise would prohibit, there is no dispute that it would allow military prosecutors to use statements that had been obtained under harsh techniques that are now banned.
The complex, technical, and often ambiguous language in the 94-page measure was a subject of debate, posturing and, perhaps, some wishful thinking yesterday. Each side in the hard-fought negotiations -- the White House and the three opposing Republican senators -- declared victory.
And human rights groups simultaneously insisted that the new bill should be read to forbid various tough antiterrorism tactics and cautioned that the Bush administration had been given too much power to make the rules.
Some longtime critics of the administration expressed satisfaction with aspects of the compromise. They hailed the three senators who negotiated it, Lindsey Graham of South Carolina, John McCain of Arizona and John W. Warner of Virginia, as leaders who placed principle over politics in stopping the effort to redefine a provision of the Geneva Conventions knows as Common Article 3.
That provision bars, among other practices, outrages upon personal dignity, in particular, humiliating and degrading treatment.
The McCain, Graham, Warner trio really fought back and prevented the administration from winning its effort to reinterpret Common Article 3, said Jennifer Daskal, the United States advocacy director for Human Rights Watch.
The proposed law, at least if it is interpreted honestly, Ms. Daskal said, would prohibit interrogation techniques like sleep deprivation, forced standing for long periods and extreme temperatures.
Others said that the negotiations were a sham and that an array of harsh techniques remained available.
The only thing that was actually accomplished, said Eric M. Freedman, a law professor at Hofstra University and the author of a book on habeas corpus, was that the politicians got to announce the existence of a compromise. But in fact, most of the critical issues were not resolved.
Martin S. Lederman, who teaches constitutional law at Georgetown, said the bill continued to allow the harsh treatment of detainees by the Central Intelligence Agency.
They appear to have negotiated a statutory definition of cruel treatment that doesnt cover the C.I.A. techniques, Professor Lederman said. And they purport to foreclose the ability of the courts to determine whether they satisfy the Geneva obligations.
The bill would allow, and perhaps require, the president to issue regulations concerning the meaning and application of the Geneva Conventions, and it calls for them to be published in the Federal Register.
Legal experts differed about whether that bargain, trading power for transparency, was sound.
Changes to the procedures for the military commissions established to try terrorism suspects for war crimes also met with mixed responses. Revisions that would let defendants see the evidence against them were welcomed by military defense lawyers and human rights groups.
But some voiced concern that using statements obtained through coercion, even coercion forbidden by the McCain Amendment to Detainee Treatment Act of 2005, would still be allowed in many circumstances. So would be hearsay evidence, as well as a combination of the two.
You create a situation, Ms. Daskal said, in which someone could be convicted based on a second- or third-hand statement from a detainee during an abusive interrogation.
The issue that most engaged administration critics was the new bills aggressive and possibly constitutionally suspect efforts to keep the courts from hearing many detainees challenges or claims based on the Geneva Conventions. Though people charged with war crimes would receive trials before military commissions that largely resemble courts-martial and criminal prosecutions, the administration has announced plans to use just a score of those.
About 430 people are being held at Guantánamo Bay, Cuba, and there is no guarantee that they will ever be tried. The legislation, unchanged by the compromise, would prohibit habeas corpus challenges to these indefinite detentions.
Youre creating a system, Ms. Daskal said, where Khalid Shaikh Mohammed, called the mastermind of the Sept. 11, 2001, attacks, will have more rights than the low-level detainee who was sold into U.S. custody by bounty hunters.
Indeed, the propriety of indefinite detentions at Guantánamo will continue to be decided by combatant status review tribunals, or C.S.R.T.s. The revised rules for military commissions do nothing to alter the tribunals unorthodox procedures.
"The C.S.R.T. is the first time in U.S. history in which the lawfulness of a persons detention is based on evidence secured by torture thats not shared with the prisoner, that he has the burden to rebut and without the assistance of counsel, said Joseph Margulies, author of Guantánamo and the Abuse of Presidential Power (Simon & Schuster, 2006).
A limited appeal from adverse determinations of these tribunals is permitted, but habeas corpus challenges are not. That means, Professor Freedman said, that the feature of the bill that does the greatest amount of harm to the American legal system remains untouched.
The compromise adds a wrinkle, prohibiting the very invocation of the Geneva Conventions in civil cases and habeas proceedings and, depending on how one reads an ambiguous passage, perhaps criminal cases, too.
The Senate Judiciary Committee will hold hearings on Monday on limiting detainees habeas challenges. If Congress does not act, Professor Freedman said, the courts may reject the habeas provisions in the law.
An attempt to throw out of court many hundreds of pending cases that the Supreme Court has twice held have a right to be there, he said, is not likely to be met with a favorable reaction in the Supreme Court.