Watch CBS News

McCain Defends Interrogation Agreement

A Republican deal on terrorism trials and interrogations would give President Bush wide latitude to interpret standards for prisoner treatment, even though it doesn't include a provision he wanted on the Geneva Conventions.

The resulting legislation, if passed next week by Congress as Republicans hope, would revive the CIA's terrorist interrogation program because it would reduce the risk that agency workers could be found guilty of war crimes.

Appearing on CBS News' Face the Nation Sen. John McCain, R-Ariz., said the new agreement could mean that "water boarding and other extreme measures, such as extreme deprivation, sleep deprivation, hypothermia and others, would be not allowed."

Yet the deal also could open the door to aggressive techniques that test the bounds of international standards of prisoner treatment.

"The key to this deal will be whether Congress exercises real oversight over the CIA interrogation program," said California Rep. Jane Harman, who as the top Democrat on the House Intelligence Committee has been briefed on how the CIA handles terrorism suspects.

The GOP bill outlines specific war crimes such as torture and rape, but it also says the president can "interpret the meaning and application" of the Geneva Convention standards to less severe interrogation procedures. Such a provision is intended to allow him to authorize methods that might otherwise be seen as illegal by international courts.

"If we disagree with the interpretation, the fact is that those interpretations have to be published in the Federal Register. That's a document that's available to all Americans, including the press," McCain said. "And we in Congress — and the judiciary, if challenged — have the ability, then, to examine that interpretation and act legislatively. These are regulations the president would issue. We would be passing laws which trump regulations."

Mr. Bush's national security adviser, Stephen Hadley, said the president plans to use this authority to "clarify" Geneva Convention obligations by executive order, which must be published in the Federal Register

Harman said Friday she wants the administration to give Congress a list of techniques approved by the president and legal justification for the methods.

"If Congress does not demand this information, we will be giving the president another blank check to violate the law," she said.

President Bush has been pushing legislation that would endorse the CIA program since June, when the Supreme Court ruled al Qaeda members must be protected under the Geneva Conventions, a 1949 treaty that sets international standards for the treatment of war prisoners.

"Look, we couldn't outline everything that should be done," McCain said. "We tried to outline what couldn't be done under the War Crimes Act, leaving the Geneva Conventions alone, which was our first and utmost priority."

Before the court ruling, the legality of the interrogation program relied on Mr. Bush's assumption that the combatants were not protected under the treaty and, therefore, could be subjected to aggressive techniques.

U.S. officials say the Supreme Court ruling — which also determined the trials Mr. Bush established to prosecute the terrorists were illegal — threw cold water on the program because of fears interrogators could be prosecuted for war crimes.

The White House wanted to have Congress endorse the program with a law narrowly defining Geneva Convention standards, giving the president the latitude he wanted to continue the CIA program.

But when three GOP senators objected and were joined by growing numbers of allies — claiming such a move would be seen as an attempt to back out of the treaty — the White House relented. In a deal struck Thursday, the White House and Senate Republicans agreed to drop from the bill an abbreviated definition of Geneva Convention standards.

But enough legal parsing was added to the bill to achieve the president's desired effect anyway.

The Republican bill provides legal protection for the CIA program by precisely defining and enumerating atrocities widely accepted as war crimes — including torture, rape, biological experiments, and cruel and inhuman treatment.

For acts that do not rise to the level of a war crime but may test the bounds of the Geneva Conventions, the GOP bill allows the president to make the call.

The net effect is to raise the legal bar on war crime violations, making it tougher to prosecute a U.S. official unless the act meets those definitions.

"It sounds like the administration got a pretty good deal actually" because it would reinstate the president's prerogative, said John Yoo, a former Justice Department lawyer who helped write internal memos in 2002 designed to give the government more leeway in aggressive questioning of suspects.

Human rights lawyers disagree on whether this flexibility, along with the bill's definition of cruel treatment, would endorse such techniques as "waterboarding" — a method intended to simulate the sensation of drowning. Waterboarding and similar interrogation methods allegedly used by the CIA are not specifically identified as war crimes although some say these techniques could qualify as cruel and inhumane.

"Look, the ACLU and the New York Times don't like the agreement, but we think people will recognize that it defends both our values and our security," McCain said. "Some want the CIA not to be able to carry out this program. That was never our intent. But it's very important that we have this tool to collect intelligence."

But, legal experts agree, in the end it will be up to the president to determine when most interrogation methods go too far. The bill bans detainees from protesting their detention and treatment in court.

"You always run into the potential ... that we're going to go back to secret prisons and bad things will happen," said John Hutson, a former Navy judge advocate general. "And there's really not a way in legislation to make sure that doesn't happen."

McCain, who was a prisoner of war in Vietnam for five years and was subjected to torture, said it is not for him to say whether or not the CIA should close any secret prisons, but it is important for the United States to be careful about its image in the world.

"But we also have to balance that with the ability to win this war on terror," he said. "And gathering of intelligence is a very important tool."

Congress is expected to vote on the bill before lawmakers leave at the end of next week for midterm elections. While the bill has been agreed to by the Senate, House conservatives have said they were concerned with the provision that requires a defendant access to evidence if used in an attempt to convict him or her. This stipulation could expose sensitive or classified information, they said.

View CBS News In
CBS News App Open
Chrome Safari Continue
Be the first to know
Get browser notifications for breaking news, live events, and exclusive reporting.