Detainee Act Moving Forward

Not surprisingly the Repugs have come to some understanding. Unfortunately, the details are still unclear. Other than the more liberal sector of the MSM for the most part is condemning it completely. But then I expect if the bill outlined the use of the comfy chair and soft pillow tortures, they'd still be bitching.

The White House yesterday reached a compromise with Republican senators over treatment standards for the nation's most dangerous terrorism suspects, with President Bush declaring that "the most potent tool we have" -- aggressive interrogations -- will continue.

The deal was reached when Bush dropped his insistence that the United States redefine the Geneva Conventions to allow the coercive techniques -- which remain classified, but reportedly include sleep and food deprivation and forcing suspects to stand for protracted periods.

Instead, the senators agreed to rewrite the 1996-97 War Crimes Act to ban only the most aggressive techniques. Currently, the act bans anything that would constitute a "grave breach" of the Geneva Conventions. The new law, the White House said, would define specific crimes that would be banned, including cruel or inhuman treatments, biological experimentation, mutilation, rape, sexual assault, and torture.

Both sides expressed confidence that the agreement would allow the CIA's interrogation program for "high-value" suspects, the exact parameters of which remain classified, to continue.

"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," Bush said shortly after the agreement was announced.

And

There's no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved," said Senator John McCain of Arizona, who is one of three Republican lawmakers who opposed the original White House demand that the Senate agree to reinterpret the Geneva Conventions. "The agreement that we've entered into gives the president the tools he needs to continue to fight the war on terror and bring these evil people to justice."

Unlike the Geneva Conventions, the War Crimes Act is an American law that applies only to US officials and is not part of an international treaty. Rewriting the War Crimes Act to outlaw specific acts -- and implicitly permitting others -- does not erode the Geneva Conventions, which broadly state that countries can't engage in "outrages upon personal dignity," said Senator Lindsey O. Graham, Republican of South Carolina.

"We're not being seen as rewriting the terms in the middle of the war," said Graham, who worked alongside McCain and the Senate Armed Services chairman, John W. Warner of Virginia, in crafting the compromise.

This sounds like a half-measure to me. I suppose I'll wait to see what the end legislation is.

Then there is the secret evidence discussion.

The deal also resolves two major sticking points concerning the rules under which terrorist suspects can be tried in military tribunals. Rather than give defendants full access to classified information gathered against them, as the senators initially wanted, defendants will be allowed to review only the evidence prosecutors present to juries. And prosecutors will be able to redact from that evidence any intelligence-gathering "sources and methods."

That strikes me as a better standing. In fact I believe this is similar to what is allowed in a courts martial. There is the part on coerced evidence that I'm still wary about, since it really will come down to opinion of the judge.

In addition, while the White House had wanted coerced testimony to be admissible in trials, the agreement will allow judges to rule on a case-by-case basis whether such evidence was gathered lawfully.

Though various articles and editorials take differing stances on what this actually means.

Take the NYTimes, which clearly hates everything to do with this bill.

About the only thing that Senators John Warner, John McCain and Lindsey Graham had to show for their defiance was Mr. Bush's agreement to drop his insistence on allowing prosecutors of suspected terrorists to introduce classified evidence kept secret from the defendant. The White House agreed to abide by the rules of courts-martial, which bar secret evidence. (Although the administration's supporters continually claim this means giving classified information to terrorists, the rules actually provide for reviewing, editing and summarizing classified material. Evidence that cannot be safely declassified cannot be introduced.)

This is a critical point. As Senator Graham keeps noting, the United States would never stand for any other country's convicting an American citizen with undisclosed, secret evidence. So it seemed like a significant concession - until Stephen Hadley, the national security adviser, briefed reporters yesterday evening. He said that while the White House wants to honor this deal, the chairman of the House Armed Services Committee, Duncan Hunter, still wants to permit secret evidence and should certainly have his say. To accept this spin requires believing that Mr. Hunter, who railroaded Mr. Bush's original bill through his committee, is going to take any action not blessed by the White House.

I find it a bit odd that they are arguing that section I highlighted. The net result of that statement is pretty much the same now as it had previously been. If the evidence can be declassified, it will be and utilized. If it can't be, then it will still be allowed, but not given to the detainee. Unless they are arguing that the Administration didn't even seek to declassify any evidence, but I don't see that as being what was proposed.

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 Guantanamo detainees are not terrorists and will never be charged, but it also chokes off any judicial review.

That's an odd bit there. The GITMO detainees are terrorists or illegal combatants. The two definitions don't neccessarily need to coexist, but either definition should allow for prosecutions. Now, if they aren't going to be charged, that is a true complaint. The US shouldn't hold those that aren't going to be charged. If they don't clearly meet the requirements to prosecute them, then we must just take the risk and release them.

I also disagree with the contention that the "illegal combatant" defenition is "dangerously broad." If they don't fall under the definitions of legal combatant or civilian in the Geneva Conventions and they are taken in some form of combat or terrorist action, then they are most certainly illegal combatants.

The NYTimes gives great advice to the Dems:

The Democrats have largely stood silent and allowed the trio of Republicans to do the lifting. It's time for them to either try to fix this bill or delay it until after the election. The American people expect their leaders to clean up this mess without endangering U.S. troops, eviscerating American standards of justice, or further harming the nation's severely damaged reputation.

Of course, they miss the point that a lot of the swing public is frankly sick and tired of the Dems blocking without any counterproposals. Delay will be viewed negatively. And, no surprise, they go with the three reasons that there should be no allowances for the tribunals. Endangering troops, which is foolish due to the fact that the enemy hasn't and won't observe those conventions that the US is already allowing in this conflict. Then there's the "standards of justice" ploy, which I always intepret as they want the same levels of protections for these war criminals that they would allow for our own legal combatants. And lastly, and nearly completely irrelevant, is the reputation of the US - Those that think the US is a monster won't be coming to our side, those who are with us likely will stay, and those on the fence (a rarity) likely won't be swayed by this because the law will merely encode thing that we have been doing and in reality are not nearly as brutal as our enemies.

Then there is the WaPo editorial that states that this will just allow the abuses to go on. Well, I suppose in the view of the WaPo's editor using harsh language would be abusive, so I don't much see any value in their opinion.

The bad news is that Mr. Bush, as he made clear yesterday, intends to continue using the CIA to secretly detain and abuse certain terrorist suspects. He will do so by issuing his own interpretation of the Geneva Conventions in an executive order and by relying on questionable Justice Department opinions that authorize such practices as exposing prisoners to hypothermia and prolonged sleep deprivation. Under the compromise agreed to yesterday, Congress would recognize his authority to take these steps and prevent prisoners from appealing them to U.S. courts. The bill would also immunize CIA personnel from prosecution for all but the most serious abuses and protect those who in the past violated U.S. law against war crimes.

Statements like this bother me on the level that they completely ignore who is the focus of these actions and exactly why they are being done. This stance on absolute moral righteousness completely denies the thought that these people are intent on killing US citizens and have been actively engaged in doing just that. You can most certainly argue about whether the detainee is of that definition, but I'll let those decisions be made by those best qualified for that task. This whole situation is one where the ends do justify the means. Does that make me a moral relativist? Yep. And recall my stance on "fair" fights.

I would have preferred an interpretation of the Geneva Convention's CA3. That would have been clearly and cleanly drawing a line in the sand for the world to see. All this dithering in the legalese and politics continues to ensure that the reality of processing these illegal combatants remains in the fog.