Rauch emphasizes - and I fully agree - that the underlying issue has been Congress's lack of involvement and the Bush administration's unwillingness to involve it in creating long term, sustainable, comprehensive, durable, institutions for dealing with terror that will outlast the Bush administration or any particular presidential administration.
Rauch, I should add, is a keenly intelligent and sober writer on this and many other things.
Over at Balkinization, people are angry. Jack Balkin, here; David Luban, here; Sandy Levinson, here; Marty Lederman, here. Julian Ku has another view, at Opinio Juris, here.
I've been asked a couple of times who "won," McCain or Bush. I'm no expert in all the inner politics - I live in DC, but downtown for me means the occasional trip to Dupont Circle - I live between American University, my house five blocks away, the National Cathedral, and the gym. I go to the airport more often than I go downtown. So I'm no expert in what goes on in Congress. But here is Byron York on the subject:
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, that’s 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 president’s 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 participant’s words, that “a liberal jurist would say that a female interrogator of a Muslim male is a grave breach.” By writing the president’s 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.”