September 22, 2006


The Detainee Deal: The White House Won — and So Did McCain: With Republicans together, the pressure is now on Democrats. (Byron York, 9/22/06, National Review)

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 number-one 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.

The funny thing is, there are nuanced arguments to be made over who won more in the negotiations, but no question about who lost: the Democrats.

Posted by Orrin Judd at September 22, 2006 12:56 PM

“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.’”

What does that even mean? Congress can't interpret treaties, but they can say what parts of them mean?

Posted by: Pepys at September 22, 2006 4:28 PM

I interpret it to mean congresscritters are welcome to jump up and down and moan and groan, but it don't matter a hill of beans in the end, it's the president who conducts foreign policy, not congress.

Posted by: erp at September 22, 2006 6:06 PM

Your assessment is probably correct,erp. The Judicial likewise but it sure stopped things in it's tracks.

McCain is a mystery to me. I've heard him talk about his Hanoi days and he remembers it very clearly. But last week he remarked about Geneva and the role it played in pressuring Hanoi to stop the torture. That isn't exactly the way it happened. The death of HoChi Minn stopped the beatings. They had nowhere to go and they knew it. Had Ho lived the beatings would have continued, Geneva or no.

I guess it doesn't matter now and the GWOT can resume which is what it's all about.

Posted by: Tom Wall at September 22, 2006 8:46 PM

I agree - it's a mystery as to why McCain has such seeming affection for the Geneva Convention -

fat lot of good it did him.

I don't get it

Posted by: JonofAtlanta at September 22, 2006 8:58 PM

I think part of the answer is that McCain does not want to see Americans ever called torturers. By the US media or by anyone else around the world. Ever.

But that is an impossibility. His failure to recognize it is the mystery. Same for Lindsay Graham and Colin Powell - if they really wanted to "protect the boys", then they would pursue making the US military and our policies so lethal that no one would dare mistreat an American prisoner anywhere.

Posted by: jim hamlen at September 22, 2006 11:28 PM

Next thing you know, not serving lunch on time will be called torture.

If "detainees" or anyone else incarcerated for crimes against humanity, don't want to be tortured, they can tell us what we need to know to find their fellow terrorists still on the loose.

Posted by: erp at September 23, 2006 9:06 AM