Bush Gets Retroactive Pardon from Senators
Begin forwarded message:
From the New York Times:
The senators agreed to a White House proposal to make the standard on
interrogation treatment retroactive to 1997, so C.I.A. and military
personnel could not be prosecuted for past treatment under standards
the administration considers vague.
September 22, 2006
Republicans Reach Deal on Detainee Bill
By KATE ZERNIKE
WASHINGTON, Sept. 21 — The Bush administration and Congressional
Republicans reached agreement Thursday on legislation governing the
treatment and interrogation of terrorism suspects after weeks of debate
that divided Republicans heading into the midterm elections.
Under the deal, President Bush dropped his demand that Congress
redefine the nation’s obligations under the Geneva Conventions, handing
a victory to a group of Republicans, including Senator John McCain of
Arizona, whose opposition had created a showdown over a fundamental
aspect of the rules for battling terrorism.
The administration’s original stance had run into fierce resistance
from former and current military lawyers and Mr. Bush’s former
secretary of state, Colin L. Powell, a former chairman of the Joint
Chiefs of Staff. They argued, as did Mr. McCain and the other two
senators leading the resistance, that any redefinition would invite
other nations to alter their obligations and endanger American troops
captured abroad.
“There is no doubt that the integrity and the letter and the spirit of
the Geneva Conventions have been preserved,” said Mr. McCain, who was
tortured during more than five years as a prisoner in North Vietnam.
Members of Congress and administration officials announced the deal
after emerging from a tense and intricate all-day meeting in Vice
President Dick Cheney’s office in a Senate building. They said they
would try to push the measure through in the five days Congress is
scheduled to meet before lawmakers leave to go out and campaign.
The White House moved quickly to assert that it had not surrendered.
Administration officials characterized the negotiations as cooperative
and the result as a victory for all sides.
“The agreement clears the way to do what the American people expect us
to do: to capture terrorists, to detain terrorists, to question
terrorists, and then to try them,” Mr. Bush said in Orlando, Fla.,
where he was attending fund-raisers for several Republican candidates.
The dispute revolved around how to define the rules governing the
interrogations of terrorism suspects and providing legal protection to
C.I.A. officers conducting interrogations. Under the deal, Congress
would seek to codify the limits by outlining in the War Crimes Act, a
domestic law, several “grave breaches” of the relevant provision of the
Geneva Conventions, known as Common Article 3. The deal would eliminate
a legislative provision in the original White House proposal saying
that compliance with the Detainee Treatment Act, which Congress passed
last year and which bans “cruel, inhuman or degrading treatment,” would
by itself satisfy the obligations of the United States under the
conventions.
“Everybody agreed we ought to try and do it in a way that did not
involve modifying or amending our international obligations,” said
Stephen J. Hadley, the president’s national security adviser. “That was
the objective we all came to here in the last week. The goal was
whether we could find language mutually agreed between the Senate and
the White House that would achieve those objectives.”
Dan Bartlett, counselor to the president, said: “We proposed a more
direct approach to bringing clarification. This one is more of the
scenic route, but it gets us there.”
The agreement says the executive branch is responsible for upholding
the nations’ commitment to the Geneva Conventions, leaving it to the
president to establish through executive rule any violations for the
handling of terrorism suspects that fall short of a “grave breach.”
Significantly, Senate aides said, those rules would have to be
published in the Federal Register.
The agreement provides several pages describing “grave breaches” that
would not be allowed, starting with torture and including other forms
of assault and mental stress. But it does not lay out specific
interrogation techniques that would be prohibited.
The adjustment to the War Crimes Act, “will put the C.I.A. on notice of
what they can and can’t do,” said Senator Lindsey Graham of South
Carolina, who, along with Senator John W. Warner of Virginia, joined
Mr. McCain in leading resistance to the White House approach. “It would
take off the table things that are not within American values.”
Asked about one of the most controversial interrogation techniques, a
simulated drowning known as water-boarding, Mr. Graham said, “It is a
technique that we need to let the world know we are no longer engaging
in.”
Gen. Michael V. Hayden, the C.I.A. director, issued a statement to
employees, saying, “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 that allows us to continue
to defend the homeland, attack Al Qaeda and protect American and allied
lives.”
The senators were careful not to characterize winners and losers. “This
was a give-and-take,” Mr. Graham said.
The senators agreed to a White House proposal to make the standard on
interrogation treatment retroactive to 1997, so C.I.A. and military
personnel could not be prosecuted for past treatment under standards
the administration considers vague.
Senators Graham McCain and Warner said the agreement met the three
goals they set from the beginning: to preserve the Geneva Conventions,
to allow the C.I.A. to continue interrogations and to set up a program
that would pass court review.
On another point of contention, the use of classified evidence in
prosecutions of terror suspects, the senators won agreement that
suspects would be allowed to see any evidence the jury sees, which the
senators say is in keeping with 200 years of American judicial
tradition. But the agreement includes procedures that would strip the
evidence of the most sensitive details that lawmakers have worried
could be used to plan more attacks.
The agreement would not allow any evidence obtained by techniques that
violate the Detainee Treatment Act, and would not allow hearsay
evidence that the defense successfully argues is not reliable or
probative.
The Supreme Court had thrown the issue to Congress in June, when it
struck down the tribunals the president established shortly after the
terror attacks of Sept. 11, 2001, saying they violated constitutional
and international law.
After weeks of standoff over proposed legislation, the two sides had
begun to negotiate in earnest in the last few days, after Mr. Hadley
said on the Sunday morning news programs that he believed they could
reach consensus without modifying international agreements.
Thursday morning, Senator Bill Frist of Tennessee, the majority
leader, who has supported the president’s approach, told Mr. Warner
that with just a week left before the Senate is to adjourn, they needed
a deal by evening.
Mr. Frist said he would send the bill to the floor. In the House,
Representative Duncan Hunter of California, chairman of the Armed
Services Committee, said he had some concerns about the use of
classified evidence, but added, “I think we’re very close.”
Democrats have put their trust in Senators Graham, McCain and Warner to
push back against the White House, and Thursday they signaled that they
intended to continue cooperating. “Five years after Sept. 11, it is
time to make the tough and smart decisions to give the American people
the real security they deserve,” said the Democratic leader, Harry Reid
of Nevada.
Still, Senator Carl Levin of Michigan, the senior Democrat on the Armed
Services Committee, said he would press to change a provision in the
proposal that would deny detainees a right to challenge their captivity
in court.
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