GOP Senators Seek to Meld Detainee Plan, Geneva Treaty

Times Staff Writers

The Bush administration’s proposal for handling terrorism prisoners would undercut the Geneva Convention and weaken protections against harsh treatment of detainees ordered by the Supreme Court, congressional critics, including Republicans, said Tuesday.

The issue of how to apply Geneva Convention protections under a new military tribunal system emerged as the most significant dispute between the White House and lawmakers as they worked to replace the administration’s system after it was struck down in June by the Supreme Court.

Bush wants Congress to act by the end of the month to approve his proposal for a new military commission system to prosecute terrorism detainees. Administration officials have been negotiating with leading Republican lawmakers, including Sen. John McCain (R-Ariz.) over the use of evidence in trials, and senators said Tuesday that there had been progress.

But the administration proposal would avoid a key provision of the Geneva Convention that, in addition to banning torture and cruelty, prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment.” Through a complex legislative formulation, the White House proposal would redefine the requirements of the provision, known as Common Article 3, critics said.


"[We] are not going to agree to changes in the definitions of Common Article 3 because that then sends the message to the world that we are not going to adhere fully to the Geneva Conventions,” said McCain, who spent years in a North Vietnamese prison camp.

Vice President Dick Cheney and Air Force Gen. Michael V. Hayden, the CIA director, met with senators Tuesday to push for passage of the administration’s proposal. Administration officials have said the redefinition of American treaty obligations is necessary to protect interrogators from lawsuits and safeguard a CIA detention and interrogation program. Privately, administration officials have told members of Congress that the CIA program could be forced to end if new legislation did not reinterpret the international agreement’s protections.

McCain co-wrote a rival Republican bill that also offers protections for interrogators but preserves the traditional definitions of the Geneva Convention. McCain wrote his proposal along with Sen. John W. Warner (R-Va.), the chairman of the Armed Services Committee, and Sen. Lindsey Graham (R-S.C.), a military lawyer who quickly sided with McCain on the Geneva Convention question.

“We’re not going to let interrogation methods be authorized or implemented that clearly violate our treaty obligations,” Graham said. “It would hurt this country for years to come if we’ve been perceived as or actually abandon treaty obligations we’ve adhered to for 60 years. We need not go down that road to fix this problem.”


Human rights advocates said the administration would replace the Geneva Convention’s absolute standard of what constitutes torture and cruel or degrading treatment with a relative standard, subject to wider latitudes of interpretation.

“The administration is really concerned that Common Article 3 prohibits the CIA program,” said Tom Malinowski, the Washington advocacy director of Human Rights Watch. “It is their number 1, 2, 3, 4 and 5 priority to protect the CIA program.”

The administration’s military commission bill is the latest White House defense of harsh interrogation techniques. Beginning in 2002, when President Bush suspended Geneva Convention protections for captured Al Qaeda members, he has sought latitude to use tough tactics on detainees.

In June, however, the Supreme Court ruled that the United States is bound by the Geneva Convention, a decision that forced the Pentagon to rewrite its policies and sent the administration scrambling to allow the CIA to use tougher interrogations techniques.


Under the Army’s new field manual on interrogation, released last week, the Defense Department said that its interrogators would comply with Common Article 3 at all times.

But some administration officials have argued that the CIA is able to conduct tougher interrogations than the military and still comply with the Geneva Convention. Human rights organizations have questioned that assertion, arguing that, by definition, any interrogation practices that use pain to try to break detainees are at odds with international standards.

“This stuff doesn’t work if it is mild,” Malinowski said. “They have to be cruel to work.”

Graham said that allowing the CIA to operate outside of the Geneva Convention would provide other countries a justification for mistreating Americans.


“They will pick the people out of the room: ‘You, you, you, you’re special, go over to the secret police,’ ” he said.

Senate supporters of Bush’s plan said that it was necessary to redefine the Geneva treaty in order to protect Americans from war crimes prosecutions. Sen. John Cornyn (R-Texas) said the debate over the treaty was “the most difficult” issue remaining among Republicans.

“We are for giving these individuals every legal right that is required, but no more,” he said.

The White House proposal would not alter the Geneva treaty itself. Instead, it would define the key provisions by referring to another U.S. law, the 2005 Detainee Treatment Act. But the effect, said Elisa Massimino, Washington director of Human Rights First, would be to gut the Geneva Convention.


“This announces to the rest of the world we are renouncing Common Article 3 restrictions,” Massimino said.