Reports that the White House was about to fold last week when negotiating with John McCain and other senators on the treatment of War on Terror detainees were greatly exaggerated. Not only did the White House not fold, it got a good deal, one that will preserve the life-saving CIA-interrogation program. The ACLU, the left-wing blogosphere, and human-rights groups are howling, as — given their opposition to all coercive interrogation — well they should.
The president wanted to ensure that there were reasonably clear definitions of what it takes for interrogators to comply with both domestic law (the War Crimes Act) and Common Article 3 (CA3) of the Geneva Conventions. He wanted language reassuring the interrogators that what they were doing was both lawful and honorable, eliminating the uncertainty in the current legal climate that has sent CIA officials running to buy litigation insurance. The president initially proposed a bill that would have accomplished all of these goals in one fell swoop; the compromise also accomplishes them, but in two steps.
In the first step, the compromise legislation will define compliance with domestic-law obligations in such a way that the interrogation program can continue (with the apparent exception of water-boarding, a controversial but highly effective technique). It will also define U.S. compliance with international-law obligations under CA3, but only in terms of what would constitute “grave breaches” of it. Significantly, the definition of “grave breaches” is the same for the purposes of both domestic and international law. This is just as the president wanted: It means that if an interrogation is in compliance with domestic law, it is also in compliance with international law — thereby forestalling prosecutions in foreign and international tribunals.
The deal also acknowledges the president’s power to define the rest of our CA3-related obligations by determining what constitutes a “non-grave breach” of CA3, and indicates that he should do so publicly. This is the second step — and, assuming the president completes it, his original goals concerning interrogation will have been achieved. (The deal also makes it clear that people who claim their Geneva rights have been violated cannot sue, providing a further cushion against legal mischief.)
It would have been better if the McCain Amendment of last year and the Supreme Court’s execrable Hamdan decision hadn’t threatened to put the CIA interrogation program out of business in the first place, making this latest congressional action necessary. But, that said, a great virtue of this compromise is that, for the first time in our history, both political branches have spoken clearly to the issue of interrogating unlawful enemy combatants. They have agreed that, while torture and the more extreme coercive treatments — i.e., “cruel and inhuman” treatment — ought to be eschewed, aggressive interrogation is legal and necessary. Critics of the interrogation program can no longer lay it solely on President Bush’s doorstep. Now it is just as much the program of Congress and of John McCain, who has done so much grandstanding on the issue, and has contributed to the ridiculous notion that any coercive technique at all is tantamount to torture.
The other major point of contention in the negotiations was the use of hearsay and classified evidence in military commissions trying terrorist suspects. The administration compromised and essentially abandoned its insistence on being able to introduce classified evidence in such a way that only the accused’s lawyer, not the accused himself, would see it. Now, instead, detainees will get to know the substance of such evidence, while its sources and the methods by which it was gathered will be kept secret. This is a retreat for the administration, but is not an unreasonable resolution.
In the end, the caterwauling of McCain & Co. over the administration’s supposed desire to reinterpret the Geneva Conventions may serve a useful function in public diplomacy. The whole world has now seen the administration supposedly bow to McCain’s desire to “preserve” our Geneva obligations, but the CIA program will continue anyway. That’s not such a bad outcome.