The detainee-treatment deal announced late yesterday by Sens. John McCain, Lindsey Graham, John Warner and the White House nearly happened 10 days ago. By September 13, negotiations had been under way for some time, and, according to a source aligned with the McCain/Graham/Warner camp, the two sides had basically agreed that there would be no clarification, or redefinition — depending on which side you listened to — of the Geneva Conventions. Instead, a new bill would specify illegal practices in treatment of prisoners under the War Crimes Act, as the senators had wanted.
"We were at a point where they said, 'OK, we'll send you language,'" says the source. "Then [National Security Adviser Stephen] Hadley called and said they couldn't do it." The delay — lawmakers still aren't sure what it was about — lasted until last Sunday, when Hadley ran into both McCain and Graham in green rooms before the Sunday talk shows. The men talked. On television, Hadley's statements were conciliatory, and the negotiations started to move to a more serious plane. "We were sending language back and forth all week," the source says. By Thursday, the negotiators spent hours in the vice president's office in the Capitol (minus the vice president) before reaching the final agreement.
Who won? Before the final deal came out, there had been speculation that the White House had "blinked" in the much-hyped confrontation. By the end, though, representatives of both sides professed satisfaction. "I think there is every reason for both sides to be happy," the source says. "This was a situation where both the Congress and the administration shared a common objective," Hadley told reporters afterward. "And what we did in a fairly creative way was come up with ways that we could all support to achieve that objective."
Is one or the other — or both — spinning? Perhaps a little, but it does appear that both sides did, in fact, get the main things they wanted. And that raises questions about whether the showdown was ever quite as fundamental as the hype suggested. The Republican "dissenters" never wanted to cripple the CIA's interrogation program — a program hated by many of the administration's critics on the left. Rather, they wanted to work out a way to make most of the program legal using existing American law, not the Geneva Convention. And in that, they appear to have succeeded.
During a conference call after the senators announced the deal on Capitol Hill, Hadley said the proposed legislation satisfied President Bush's No. 1 concern. "The president said that his sole standard with respect to Common Article III [of the Geneva Conventions] was going to be whether the CIA would be able to go forward with a program for questioning terrorists," Hadley said. That program has "saved lives, both here at home, and saved lives on the battlefield."
During the negotiations, Bush had issued a forceful threat to end the program if Congress did not give him what he wanted. Now, Hadley said, that won't be an issue. "The program will go forward," he explained, "and the men and women who are asked to carry out that program will have clarity as to the legal standard, will have clear congressional support, and will have legal protections as we ask them to do this difficult work."
How did that come about, giving the president what he wanted while still addressing McCain/Graham/Warner's concerns? 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.