Detainee Deal Win For Bush And McCain

This column was written by Byron York.

"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.

Grace Breaches
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.

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."

Secret Evidence Stays Secret
While it appears that most of the drawn-out negotiations concerned the grave-breaches issue, the fight was also about so-called "secret evidence" and whether it could be used in congressionally-approved military commissions. In the end, the answer is: yes. "A provision dealing with classified evidence makes sure that no sensitive intelligence will have to be shared with terrorists or their lawyers," Hadley told reporters after the deal was announced. "The bar is very high. There will not be — the terrorists will not have access to classified information."

But both sides agreed that there are ways, in trials before military commissions, to give defendants what Hadley called the "substance" of the evidence against them without handing over classified information. "To the extent there is exculpatory evidence that is involved, that will be provided to them, but in an unclassified form," Hadley said. But in all cases, he added, information about sources and methods, which he called the most important issue in the evidence debate, will remain secret.

The deal seemed to satisfy Sen. Graham, who has been the leading figure in the fight over evidence. "We struck a great balance," Graham told reporters at a news conference after the deal was made. "We need to be very clear that, in prosecuting the terrorists during a time of war, we do not have to reveal our sources and methods to protect us, our classified procedures. … But if the government decides to provide information to the jury that would result in a conviction, sending someone to jail for a long period of time, or to the death chamber, an American trial must allow that person to know what the jury found them guilty of so they can confront the evidence."

What Will Democrats Do Now?
During the long negotiations between the Republican senators and the White House, Democrats were content to stay out of the issue, saying instead that they stood with McCain against the abuse of detainees. Now, however, there is a specific agreement, and McCain is on board, as well as Graham and Warner. What will Democrats do now?

There are early indications that some of their constituency groups will pressure them to oppose the legislation. Not long after the deal was made, the American Civil Liberties Union issued a press release denouncing it. "This is a compromise of America's commitment to the rule of law," Caroline Fredrickson, the head of the ACLU's Washington legislative office, said in a statement. "The proposal would make the core protections of Common Article 3 of the Geneva Conventions irrelevant and unenforceable. It deliberately provides a 'get out of jail free card' to the administration's top torture officials, and … the president would have the authority to declare what is — and what is not — a grave breach of the War Crimes Act, making the president his own judge and jury."

Late Thursday, yet another source in the McCain/Graham/Warner camp was asked whether he was concerned with the ACLU's opposition. "Not at all," he answered. Politically, the White House — and McCain, too, as he courts conservatives in hopes of winning the 2008 Republican presidential nomination — might be quite happy to have the ACLU against them. But for Democrats, the ACLU means a political headache.

The New York Times also joined in the criticism, not just of the proposed bill, but of Democratic passivity. "The Democrats have largely stood silent and allowed the trio of Republicans to do the lifting," the Times editorialized. "It's time for them to either try to fix this bill or delay it until after the election."

Finally, early reaction from the left-wing blogosphere, a growing player in Democratic politics, was wholly negative. Not only was the deal bad, some bloggers said, but Democrats were cowardly for staying out of the debate. "McCain sells out the country and Democrats look like crap," wrote the popular blogger Atrios. On the even more popular DailyKos site, a featured writer said that McCain and his allies had knuckled under to President Bush, and it would be a terrible mistake for Democrats to follow their lead. "That's no compromise, all you 'principled' GOP rebels," the blogger wrote. "It's capitulation. Lay down your much-vaunted 'integrity' and take up your rubber stamps."

So now, six weeks before the midterm elections, it is up to Democrats to take a position on the new detainee deal. Will they continue to stand with McCain and support the proposal? Or will they listen to their interest groups and oppose it? The answer they choose could make a very, very big difference in November.

Byron York, NR's White House correspondent, is the author of the book "The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They'll Try Even Harder Next Time."

By Byron York
Reprinted with permission from National Review Online