Bush Bows to Senators on Detainees

Times Staff Writers

President Bush acceded to dissident Senate Republicans on Thursday, agreeing to new rules for interrogating and prosecuting suspected terrorists that leave intact international treaty protections against torture.

In a major concession to Arizona Sen. John McCain and other Republicans, the administration dropped its efforts to have Congress redefine U.S. obligations under the Geneva Convention. The compromise bill in effect bans the most controversial CIA interrogation tactics, including water boarding, a form of simulated drowning, said those involved in the negotiations.

At the same time, the agreement gives Bush the legal protections he said were needed to preserve a secret CIA interrogation program. The compromise bill would allow Bush the latitude to employ interrogation tactics which go beyond legal limits set for the U.S. military.


Both McCain and Bush hailed the agreement, saying their most important priorities had been met.

“There is no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved,” McCain said after hours of closed-door, often tense negotiations.

Bush, campaigning for GOP candidates in Florida, said the agreement would achieve his goal of preserving a critical CIA interrogation program that “will help us crack the terror network and to save American lives.”

But many human rights advocates involved in the debate expressed satisfaction that the White House had been forced to drop its demands that Congress redefine U.S. treaty obligations.

“The administration did not achieve its goal of having the Geneva Convention redefined,” said Elisa Massimino, the Washington director of Human Rights First. “The agreement makes clear that the president can’t downgrade the humane treatment standards of the Geneva Conventions, and that Congress is unwilling to do that.”

While at least a partial setback for Bush, the deal heads off a politically embarrassing intra-party showdown in an election year and also paves the way for trials of terrorism suspects held at Guantanamo Bay, Cuba. The compromise followed weeks of wrenching debate in which Bush’s proposal was criticized by leading members of his own party, including McCain and former Secretary of State Colin L. Powell.


Sen. Lindsey Graham (R-S.C.) said the legislation would permit aggressive interrogation techniques that will “get us good information” but would “put boundaries around conduct that would not represent American values.”

The compromise sets the stage for expected Senate approval next week of legislation authorizing military tribunals to try the suspects at Guantanamo Bay. The House also is expected to take up the bill. The interrogation provisions are part of the military tribunal measure.

Senate GOP leaders and the White House also were moving toward a compromise Thursday on legislation authorizing the president’s warrantless domestic surveillance, a sign of the heightened anxiety among Republicans over the need to complete work on national security legislation before recessing next week.

The compromise came together after Senate Majority Leader Bill Frist (R-Tenn.) -- worried about time running out -- called administration officials and the dissident GOP senators together.

The tribunal legislation was necessitated by a Supreme Court ruling in June that struck down the administration’s earlier rules for detaining and prosecuting accused terrorists. Among those who are expected to be put on trial, once the legislation becomes law, are self-proclaimed Sept. 11 planner Khalid Shaikh Mohammed and 13 other suspected leaders of Al Qaeda who are now at the U.S. detention facility in Guantanamo Bay.

At issue was the meaning of Common Article 3, a provision of the Geneva Convention of 1949. The provision bans torture and cruel treatment and is considered a minimum level of protection for those taken prisoner in armed conflicts. But the Bush administration considers parts of Common Article 3 too vague, including its prohibition on “outrages upon personal dignity.”


McCain, a former POW, along with Graham and Republican Sen. John Warner of Virginia, chairman of the Senate Armed Services Committee, had resisted the administration’s efforts to redefine U.S. obligations under the Geneva Convention. They contended it would lead other nations to reinterpret their treaty obligations and put captured Americans at risk.

The compromise lists nine violations of Common Article 3 that are considered war crimes. It bans cruel and inhuman treatment, as McCain wanted. But it does not classify “degrading” treatment as a war crime, a concession by the Senate Republicans to Bush.

Under Thursday’s deal, the administration dropped its opposition to making the infliction of “serious mental pain or suffering” a war crime. The compromise also bans shorter-term “non-transitory” suffering.

A Senate staffer involved in negotiations said that would ban the most outrageous of CIA methods, including water boarding -- a tactic in which detainees are made to feel as if they’re drowning -- and mock executions.

“That was designed so that water boarding will never again be allowed,” said the staffer. “Everyone was nodding their heads. This was out on the table. Sen. McCain said: ‘We are not going to be water-boarding people. We are not going to be firing guns next to their heads. We will not be threatening them with death.’ ”

Although the bill allows the president to issue interpretations of the Geneva Convention, it also requires that any such executive interpretation be published in the Federal Register. Regulations and orders published in the Federal Register may be reviewed -- and overridden -- by Congress. Human rights organizations said they could accept that compromise because it would keep the administration’s actions public, and thus subject to review.


“The important part of the compromise is that Congress and the judiciary will retain their oversight role,” said Tom Malinowski, the Washington advocacy director for Human Rights Watch. “The administration will say what it says, but it is no more binding than any regulation and subject to judicial review.”

In a statement, the CIA director, Gen. Michael V. Hayden, said he was happy with the compromise.

“If this language becomes law, the Congress will have given us the clarity and the support that we need to move forward with a detention and interrogation program that allows us to continue to defend the homeland, attack Al Qaeda and protect American and Allied lives,” Hayden said.

Rep. Duncan Hunter (R-El Cajon), chairman of the House Armed Services Committee, expressed concern that the Senate compromise would allow suspects to gain access to classified evidence.

“There’s still work to do on this bill,” he said, but added, “We’re very close.”

Graham said the compromise would shield methods and sources of intelligence from being disclosed but would not allow a suspect to be convicted without seeing the evidence.

“It boils down to: If it goes to the jury, it goes to the defendant,” said the Senate staffer.


Originally the Bush administration wanted to be able to use classified information and keep it secret from the defendant. But Hadley said the administration was satisfied with the compromise because it prohibited defendants from using the legal process of discovery or other mechanisms to get access to classified information.

A final sticking point between the Republican senators and the administration was the use of coerced evidence. For trials of suspects captured in the future, the compromise excluded evidence that was gathered by torture and methods that violated prohibitions on cruel treatment.

For detainees now in custody, including the 14 suspected terrorists recently transferred to Guantanamo, it will be up to military judges to decide what coerced evidence can be used.

McCain, a possible 2008 presidential candidate, refused to say who came out ahead in the fight over detainees.

“In this business, people say, ‘Who’s the winners and who’s the losers?’ There’s none,” he said. “We’re all winners because we’ve been able to come to an agreement through a process of negotiation and consensus.”


Times staff writer Richard B. Schmitt in Washington contributed to this report.




The new rules

Highlights of the agreement between the White House and Senate Republicans dealing with the treatment of terrorist suspects:

* Requires that a defendant being tried by military commission have access to any evidence given to a jury.

* Drops a section of the administration’s previous proposal that stated an existing ban on cruel, inhuman or degrading treatment satisfies the nation’s obligations under the Geneva Convention.

* Prohibits “grave breaches” of the Geneva Convention. Defines grave breaches as acts such as torture, rape, biological experiments, and cruel and inhuman treatment.

* Notes the president has the authority to interpret “the meaning and application” of the Geneva Convention.

* Allows hearsay evidence.

* Allows coerced testimony if the statement was acquired before a 2005 ban on cruel, inhuman or degrading treatment and a judge finds it to be reliable. Bans coerced statements taken after the 2005 ban went into effect if constitutional definitions of cruel, inhuman or degrading treatment were violated.


* Bars individuals from protesting violations of Geneva Convention standards in court.

Source: Associated Press