Compromise between White House and McCain-Warner-Graham

(Update, Saturday, September 23, 2006. I've posted some reactions of my own, here.)

The Washington Post reports that a compromise has been reached between the White House and Senators McCain, Warner, and Graham on on at least a couple of contested points. Article here. Here is the AP. See also this press conference call with Stephen Hadley, national security advisor, via National Review Online, here. And Byron York's conversation with a Senate staffer, here. The ACLU is unhappy, press release, here, via NRO - although on a quick read it appears incorrect when it says that the President will have the power to define grave breaches of Common Article Three ("the president would have the authority to declare what is - and what is not - a grave breach of the War Crimes Act") - on the contrary, a critical element of the compromise seems to be, unless I am missing something, that Congress will define the meanings of grave breaches and the president will define terms of and sanctions for violating the non-grave breaches.

Just reading that Post and a couple of other news articles, it appears that (from the WP):

One official said that under the agreement, the administration agreed to drop language that would have stated an existing ban on cruel, inhuman or degrading treatment was enough to meet Geneva Convention obligations. Convention standards are much broader and include a prohibition on "outrages" against "personal dignity." In turn, this official said, negotiators agreed to clarify what acts constitute a war crime.

I understand this to mean that the administration agreed that it would not insist that the existing language of the McCain Amendment - last year's Detainee Treatment Act of 2005 - would not be the applicable standard declared to meet the standard of Common Article Three. So the administration gives up that standard. The Senators, however, agree that if that language is not used, they will give clarifying definitions, for what constitutes at least a war crime under Common Article Three, rather than leaving that undefined in US law beyond the language of Common Article Three itself.

However, agreement was not reached on other issues, e.g (from the WP):

The agreement did not extend to a related issue _ whether suspects and their lawyers would be permitted to see any classified evidence in the cases against them.

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See also this explanatory note from National Security Advisors blog, here:

The details are not yet in circulation, but from the news accounts it appears that the Administration has given up its bid to have the legislation state that "Satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in Section 1003 of the Detainee Treatment Act of 2005 . . . shall fully satisfy United States obligations with respect to the standards for detention and treatment established by section 1 of [C]ommon Article 3 of the Geneva Conventions . . . " (The quote comes from Section 6 of the White House bill). In exchange, press accounts suggest that the Senators have accomodated Administration concerns regarding the proposed amendment to the War Crimes Act which would replace the status quo (simply criminalizing violations of Common Article 3) with a specific list of actions in violation of Common Article 3 that would trigger criminal liability. Of course, the bill from Warner et al. also took the laundry list approach; the issue on this point had to do with the scope of conduct to be so listed. A key point to look out for as details emerge, then, is the extent to which compromise War Crimes Act "list" departs from Common Article 3. It appears that the gap will be sufficient to lift the threat of prosecution with respect to at least some of the more coercive measures at issue with respect to the much-discussed CIA program for high value detainees. Assuming that to be true, however, some will contend that the legislation breaks with Common Article 3 after all. Others will contend that Common Article 3 continues to apply as before, and that only the War Crimes Act has been limited (a position that assumes that the GCs do not require criminalization of all possible CA3 violations...any thoughts on that?).

Other details yet to be revealed: It does not appear that the senators have dropped their objection to permitting ex parte presentation of classified evidence during commission hearings, however, so watch for more details on that distinct bone of contention. Also keep an eye out for details regarding the extent to which detainees will be permitted to assert Geneva Convention-based claims, since the Administration's bill forecloses that option while the bill from the Senators only specifically foreclosed reliance on the GC's in connection with damages lawsuits.

Marty Lederman has posted language at Balkinization, here, and here are his accompanying comments (also see some of the quite interesting comments):

Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva

I hope that that headline is a gross exaggeration, but based on a few quick seconds pursuing the "compromise," I'm afraid it's not.Here's the language. It's not subtle at all, and only takes 30 seconds or to see that the Senators have capitualted entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States."And then, for good measure, it would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories."

If this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the "no person may invoke Geneva" provision, are unconstitutional.

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I'm not posting any editorial comment at the moment; I'm still trying to work my way through the language.