Breaking: Bush, McCain reach compromise on "torture"; Update: Water-boarding forbidden

No details yet, but here’s a hint:

One official said that under the agreement, the administration agreed to drop language that would have stated an existing ban on cruel, inhuman or degrading treatment was enough to meet Geneva Convention obligations. Convention standards are much broader and include a prohibition on “outrages” against “personal dignity.”

In turn, this official said, negotiators agreed to clarify what acts constitute a war crime. The official spoke on condition of anonymity, saying he had not been authorized to discuss the details.

The War Crimes Act defines “war crime” as follows:

(c) Definition.— As used in this section the term “war crime” means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or…

I.e., as the statute currently stands, “war crimes” = violations of Geneva (plus a few other things). They’re basically coextensive. It sounds like now they’re going to replace that vague standard with a concrete list of prohibited acts. The legal question then, I assume, would be: can you be sued for violating Geneva even if you’ve complied with the War Crimes Act? If Article 3 prohibits belly slaps but the revised statute allows them, will U.S. courts recognize a cause of action against belly-slapping interrogators by detainees?

Presumably not. The Financial Times reported yesterday that CIA interrogators at U.S. secret prisons are so worried about legal liability that they’ve essentially gone on strike. That’s why Bush sent KSM and the boys to Gitmo, says the Times, not because he thought it was finally time to “bring them to justice.” The new statute has to resolve that, and leaving interrogators exposed to Geneva suits, um, wouldn’t.

In any case, like a moral CPAP machine, McCain’s comment that “the integrity and letter and spirit” of Geneva are fully intact should help Sullivan breathe easy and sleep well tonight. He deserves to after last night, which must have been rough. McCain’s also been busy playing a variation of the chickenhawk card, yet another fact we should all bear in mind as he jostles for position with Giuliani and Romney.

Coulter’s made her usual helpful contribution to the debate, too.

More coming.

Update: Ace says:

Jim Angle on FoxNews just claimed that the deal concerns the War Crimes Act– that rape, murder, maiming and other “grave breaches” of the Geneva Conventions would be prosecutable, “anything else short of torture would be considered acceptable.”

So they’re keeping subsection (1) of the statute, which deal with serious offenses, and doing … what to subsection (3)? Replacing it with a list? Supplementing it? I’d be shocked if they wrote the reference to Article 3 of Geneva out of the Act entirely.

Update: A few details from the L.A. Times:

One of the stickiest points in the talks between the administration and the senators involved the use of classified information as evidence against terrorist suspects. The administration said that if suspects were shown the evidence against them, it could help their terrorist networks.

Hunter told reporters that the deal struck today would fall short of letting suspects themselves see the evidence against them. Instead, a judge advocate general would be appointed to review the evidence on their behalf and to cross-examine the witnesses who presented it. All this would be done in the absence of the suspect.

The safeguards accepted by the senators against torturing suspects and witnesses to secure evidence were said to be in accord with the Geneva Convention.

Update: The Blotter says Hayden’s pleased with the deal and that all six techniques the CIA had requested have been approved. To refresh your memory:

The first — the attention grab, involving the rough shaking of a prisoner.

Second — the attention slap, an open-handed slap to the face.

Third — belly slap, meant to cause temporary pain, but no internal injuries.

Fourth — long-term standing and sleep deprivation, 40 hours at least, described as the most effective technique.

Fifth — the cold room. Prisoners left naked in cells kept in the 50s and frequently doused with cold water.

The CIA sources say the sixth, and harshest, technique was called “water boarding,” in which a prisoner’s face was covered with cellophane, and water is poured over it — meant to trigger an unbearable gag reflex.

There’s a key discrepancy here with what the Guardian reported earlier this week. The Guardian also claimed that the CIA was seeking approval for six techniques, the first five of which are identical to the techniques reported by the Blotter. But where the Blotter rounds out its list with water boarding, the Guardian concludes with “sound and light manipulation.” Which is it?

Update: Tom Maguire has a pair of details you won’t find in any news report:

[S]ince Dems have been hiding behind St. John on this issue, they will have a hard time announicng at this late date that McCain lacks the integrity and judgment to be trusted.

And another detail – whether this is a victory for Bush or McCain, it is not a victory for Harry Reid and the Senate Dems.

Update: We don’t call him “St. John” for nothing.


Update: The ACLU condemns the compromise. It must be pretty solid.

Update: Looks like the Guardian’s list, not the Blotter’s, is the correct one.

The deal sets more stringent standards for what constitutes a felony under the War Crimes Act, which a Senate aide close to the negotiations said would bar waterboarding to simulate drowning and other extremely harsh interrogation techniques.

According to Brian Ross, water boarding helped make Khaled Sheikh Mohammed give up info that foiled a plot against the Library Tower in L.A.

More details from NSA Stephen Hadley via Instapundit. Emphases mine:

Hadley: “Clarity To The Legal Standard In Connection With Common Article 3” Is “Achieved In Three Ways In The Proposed Legislation.” (Steve Hadley, Press Briefing By Teleconference, 9/21/06)

1. Listing “Actions Which Would Expose People To Criminal Liability.” HADLEY: “One will be to enumerate those actions that will constitute violations of Common Article 3, that are grave breaches of Common Article 3, and those are defined in statute. So it will be clear from the statute of the kinds of activities which, if engaged in by men and women who are involved in interrogation of – in questioning of detainees, what kinds of activities would subject them to criminal penalties as grave breaches.”

2. “Reaffirming The Standard In The Detainee Treatment Act” And Enabling “The President To Adopt Measures For Enforcing Those Provisions.” HADLEY: “The second is that the Detainee Treatment Act, or the so-called McCain Amendment, which was adopted in December of last year, is reaffirmed in the statute, and the statute also provides that the President shall take action to ensure compliance with this section. As you know, the section prohibits cruel, inhuman, or degrading treatment or punishment within the meaning of cruel, unusual and inhumane treatment or punishment as prohibited in the 5th, 8th and 14th amendments – so-called McCain amendment standard.”

3. Granting The President The “Authority For The United States To Interpret The Meaning And Application Of The Geneva Conventions, Including Common Article III, And To Establish Standards And Administrative Regulations For Violations That Are Less Than Grave Breaches Of Geneva Conventions.”

So there’ll be a list of “grave” procedures, one of which is water boarding, that they can’t do. Anything short of that they can do unless it’s held to violate federal constitutional standards of due process and/or cruel and unusual punishment. Which is basically an open invitation for terrorists to sue their interrogators and allege violations of those clauses. Although they were going to do that anyway, no matter what deal was struck here.

Update: WaPo‘s got the most details. The more I read, the less I think this was some major victory for Bush.

The compromise language gives the president a dominant — but not exclusive — role in deciding which interrogation methods are permitted by [Article 3 of Geneva]. It also prohibits detainees from using the Geneva Conventions to challenge their imprisonment or seek civil damages for mistreatment, as the administration sought…

[T]he White House poured most of its energy into defining “cruel or inhuman treatment” that would constitute a crime under the War Crimes Act. The administration wanted the term to describe techniques resulting in “severe” physical or mental pain, but the senators insisted on the word “serious.”

Negotiations then turned to the amount of time that a detainee’s suffering must last before the treatment amounts to a war crime. Administration officials preferred designating “prolonged” mental or physical symptoms, while the senators wanted something milder. They settled on “serious and non-transitory mental harm, which need not be prolonged.”

These definitions appear in a section of the legislation that specifically lists “grave breaches” of the Geneva Conventions that might bring criminal penalties.

For lesser offenses barred by the Geneva Conventions — those lying between cruelty and minor abuse, putting them at the heart of the intraparty dispute — the draft legislation would give the president explicit authority to interpret “the meaning and application” of the relevant provisions in Common Article 3. It also requires that such interpretations be considered as “authoritative” as other U.S. regulations.

But the language also requires that such interpretations be published, rather than described in secret to a restricted number of lawmakers. That provision was demanded by the dissident lawmakers, who resented the administration’s past efforts to curtail the number of members who were told of its policies. The provision also affirms that Congress and the judiciary can play their customary roles in reviewing the interpretations, a statement that Senate sources say the White House vigorously resisted.

The only unambiguously positive provision there is the first bolded part eliminating causes of action arising out of Geneva itself. I’m assuming that in addition to the vague nonsense about “serious and non-transitory harm,” the statute’s going to list some of the specific procedures that categorically do not constitute “grave” breaches of the War Crimes Act, e.g., belly slaps and so forth. If so, then the interrogators will be ok; they can stick to the defined procedures and be confident in the legality of their acts or, if they need to stray from the script with a recalcitrant detainee, they can fall back on the vague standards and conform their behavior as best they can. If there’s no specific list of authorized procedures then they’re in limbo. All they’ll have is that “serious and non-transitory” standard to guide them.