Deal set covering rights of terror suspects
President Bush yielded to dissident Senate Republicans on Thursday, agreeing to new rules for interrogating and prosecuting suspected terrorists...
Los Angeles Times
WASHINGTON — The White House and dissident Senate Republicans reached a tentative accord Thursday on legislation that President Bush said would provide for continued tough interrogations at secret CIA detention sites.
The accord, which includes a plan for military trials of alleged terrorists, also spells out rules for the use of classified evidence as well as information obtained through coercion.
While the deal is subject to further discussion with House Republican leaders, it resolved the most contentious issues in the Bush administration's drive to gain congressional backing for its detainee policies before Congress adjourns next week. It also could help settle an intraparty fracas in the run-up to the November elections.
Both sides said they had achieved their aims. Bush said the deal preserved "the CIA program to question the world's most dangerous terrorists and to get their secrets." CIA Director Michael Hayden told the agency in a statement that "if this language becomes law, the Congress will have given us the clarity and the support that we need to move forward with a detention and interrogation program."
Sen. John McCain, R-Ariz., a former Vietnam War prisoner who led the Senate rebellion, said, "The agreement that we've entered into gives the president the tools that he needs to continue to fight the war on terror and bring these evil people to justice." But he added: "There is no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved."
On the key issue of detainee treatment, the two sides agreed on a list of specified crimes that could provoke prosecution of CIA interrogators and others. They also agreed that past violations of the Geneva Conventions, a treaty barring degrading and humiliating treatment of detainees, would not result in criminal or civil legal action.
The White House, for its part, yielded in its demand to adopt, with congressional approval, a restricted definition of its obligations under Common Article 3 of the Geneva Conventions. That article requires humane treatment of detainees and bars "violence to life and person," such as death and mutilation, as well as cruel treatment and "outrages upon personal dignity."
• Requires that a defendant being tried by a military commission have access to any evidence given to a jury.
• Drops a section of the administration's previous proposal stating that an existing ban on cruel, inhuman or degrading treatment satisfies the nation's obligations under the Geneva Conventions.
• Prohibits "grave breaches" of the Geneva Conventions, including torture, rape, biological experiments and cruel and inhuman treatment.
• Notes the president has the authority to interpret "the meaning and application" of the Geneva Conventions.
• Allows hearsay evidence.
• Does not classify "degrading" treatment as a war crime.
• Allows coerced testimony if acquired before a 2005 ban on cruel, inhuman or degrading treatment and a judge finds it to be reliable. Bans coerced statements taken after the ban if they violate constitutional definitions of cruel, inhuman or degrading treatment.
The Associated Press
The compromise language gives the president a dominant — but not exclusive — role in deciding which interrogation methods are permitted. It also prohibits detainees from using the Geneva Conventions to challenge their imprisonment or seek civil damages for mistreatment, as the administration sought.
Sen. Lindsey Graham, R-S.C., a McCain ally, said "we struck a great balance" by agreeing that in future military trials, known as "commissions," classified materials must be provided to defendants in summary or redacted form. The administration had wanted to use such evidence without disclosing it.
The administration envisions using the new rules in military trials that may involve some of the 14 key terrorism suspects whom Bush this month ordered transferred from secret CIA prisons to Guantánamo Bay, Cuba.
The White House has pressed for legislation partly to obtain immunity from prosecution for government officials, including CIA interrogators, for past acts that degraded and humiliated detainees. Its impetus was a Supreme Court ruling in June, in Hamdan v. Rumsfeld, that declared some aspects of the administration's past interrogation and trial policies illegal.
Officials' anxieties were provoked by a 10-year-old U.S. law, the War Crimes Act, that makes violations of the Geneva Conventions' prohibitions on degrading and humiliating detainees, as well as actions that amount to "outrages upon personal dignity," subject to felony prosecution. Senior military officials have told Congress those prohibitions were violated.
The deal coalesced around two crucial issues: the GOP senators' insistence that Bush not be allowed to appear to reinterpret the meaning of the Geneva Conventions, and the White House's insistence that CIA officers not be subject to prosecution for aggressive interrogation techniques — tactics that did not constitute torture but were more aggressive than "simple assault."
The biggest hurdle, Senate sources said, was convincing administration officials that lawmakers never would 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 crimes 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 "serious."
Negotiations then turned to the amount of time that a detainee's suffering must last before the tactic amounted to a war crime. Administration officials wanted "prolonged" mental or physical symptoms, while the senators wanted something milder. They settled on "serious and nontransitory mental harm, which need not be prolonged."
A Senate staffer involved in negotiations said that would ban the most outrageous of CIA methods, including water boarding — a tactic in which detainees are made to feel as if they're drowning — and mock executions.
"That was designed so that water boarding will never again be allowed," the staffer said. "Everyone was nodding their heads. This was out on the table. Senator McCain said, 'We are not going to be water-boarding people. We are not going to be firing guns next to their heads. We will not be threatening them with death.' "
For lesser offenses barred by the Geneva Conventions — those lying between cruelty and minor abuse, putting them at the heart of the dispute — the draft legislation would give the president explicit authority to interpret "the meaning and application" of the relevant provisions in Common Article 3.
The bill, however, requires that such executive interpretation be published in the Federal Register. Such regulations and orders may be reviewed — and overridden — by Congress. Human-rights organizations said they could accept that compromise because it would keep the administration's actions public.
A senior administration official who spoke on the condition of anonymity said Bush essentially got what he wanted in a way that allows both sides to maintain their concerns were addressed. "We kind of take the scenic route, but we get there," the official said.
Details on water-boarding were provided by the Los Angeles Times.
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