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Bush Yields a Little; Detainee Treatment Accord is a Mixed Bag

The Sacramento Bee
September 23, 2006

President Bush was forced to give some ground to three dissenting Republican senators to win their assent to the administration's detention and interrogation of alleged terrorists. But the result is a mixed bag that still leaves troubling questions about whether this administration will finally adapt its practices to international standards.

The compromise doesn't end the battle on Capitol Hill, where the deal must still be turned into legislation, presumably within days. But despite making concessions, Bush appears to have survived another challenge to his anti-terror strategy. How that will affect America's standing in the world, and its adherence to due process as a cornerstone of the U.S. constitutional system, still is not clear.

Bush dropped his demand that Congress redefine -- or "clarify," as he put it -- Common Article 3 of the Geneva Conventions banning not only torture but "outrages upon personal dignity," including "degrading" treatment, which Bush called too vague. But Sens. John McCain, John Warner and Lindsey Graham refused to concede that the Detainee Treatment Act, enacted last year, by itself satisfies Geneva requirements. So White House and Senate negotiators agreed on new language to define what is and is not allowed.

The agreement would bar "grave breaches" -- murder, mutilation and other egregious abuses -- and would make interrogators subject to prosecution for such violations. But interrogators would be immune to prosecution for any actions, dating back to 1997, barred by the Geneva Conventions and U.S. law. And the president would be allowed to decide what lesser interrogation techniques could be used. Defendants would be given the same access to classified evidence as juries, and a judge would determine whether evidence obtained through coercion could be introduced. Hearsay evidence would be allowed and, most troubling, detainee appeals to a higher court accusing a military tribunal of violating the Geneva Conventions would be banned.

Whatever Congress does, the final verdict may ultimately have to come from the Supreme Court, which forced the issue last June by ruling that the military commissions at Guantanamo Bay, Cuba, as established by Bush after the Sept. 11 terrorist attacks, violated both U.S. law and the Geneva Conventions.

The best that can be said at this moment is that this pliant Congress has challenged the president more forcefully than it has done on most national security issues, and that he has been forced to yield some ground. How much closer that will elevate the system of justice under which accused war criminals are tried to the standards of fairness that ought to apply to all defendants may not be known for a long time, if ever.

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