Detainee Deal Deserves a Closer Look

At first glance, the agreement between President Bush and Senate Republicans looks like a win for the senators. But a look at the deal's fine print shows that the Senate Republicans gave away about as much as they got from the White House.

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So that's what the deal looks like at first. But whatever your first impression the details may tell a somewhat different story, as NPR Legal Affairs Correspondent Nina Totenberg reports.

NINA TOTENBERG: A look at the deal's fine print shows that the Senate Republicans gave away as much as they got from the White House. On the big picture question - redefining Common Article 3 of the Geneva Conventions - the White House language is off the table; a victory for the Senate. But in its place the senators accepted language that gives CIA officers immunity from prosecution if they use extremely coercive and abusive techniques.

Everything from shackling prisoners naked in extreme heat and cold for days to the infamous technique of waterboarding - simulated drowning - a tactic that was punished as a war crime after World War II but which some administration officials have argued is not torture or even cruel or inhumane treatment.

Just which techniques are banned by the treaty will be “clarified in regulations the president will issue later.” But the deal limits techniques that are punishable as crimes to what are called grievous breaches of the treaty: murder, mutilation or maiming, rape, intentionally causing serious bodily injury or taking hostages. It would appear that everything else, while it may or may not be ruled acceptable, will not be punishable as a crime.

This is a return to a loophole that was also present in Senator John McCain's anti-torture bill last year. That bill, known as the Detainee Treatment Act, banned torture and cruel and inhumane treatment but it did not make violation of the act a crime. It was, in essence, a policy statement that barred treatment that U.S. courts would consider unconstitutionally cruel and unusual punishment.

Yesterday's deal, as presidential point man Stephen Hadley observed, reaffirms both the policy and the loophole.

Mr. STEPHEN HADLEY (Assistant to the President for National Security Affairs): The Detainee Treatment Act is not a provision of criminal law. It does not create criminal liability.

TOTENBERG: Human rights activists were infuriated by the deal. Here's ACLU Legislative Director Chris Anders.

Mr. CHRIS ANDERS (Legislative Director, American Civil Liberties Union): For the administration this is a get-out-of-jail-free card.

TOTENBERG: Both military lawyers and law professors who are expert in the field agree that the Senate gave the White House quite a bit on the question of the Geneva Conventions. But they also noted that the White House basically threw in the towel on procedures for military commissions, agreeing with Senator Lindsey Graham that whatever evidence is seen by the jury in trials at Guantanamo must be seen by the defendant too.

The military's lawyers have long argued that under the Uniform Code of Military Justice evidence can be sanitized - cleansed of classified information - so that both the jury and the defendant can see the essence of the evidence without compromising national security, and this deal provides for just that.

In addition, evidence that is not reliable because it is the result of coercion will not be permitted. And the person making that evaluation will be a professional military judge, not, as had been the case in the Bush system of tribunals, a designated military officer often with no legal training at all.

One big caveat is that the standard for determining illegal coercion is the McCain Detainee Treatment Act, which only went into effect this year and does not cover those 14 al-Qaida suspects captured years ago subjected to harsh interrogation in secret prisons and only recently transferred to Guantanamo for trial.

Scott Silliman, a retired Air Force colonel who now heads the Duke University Center on Law, Ethics and National Security, sees the deal as about a 55/45 win for the White House.

Mr. SCOTT SILLIMAN (Executive Director, Center for Law, Ethics and National Security, Duke University): On military commissions I think the Senate came out ahead. On international law and Geneva Conventions the administration got what it wanted. It's a compromise. Both sides got something.

TOTENBERG: In any event, observed Silliman, this is the beginning, not the end, of the process. Whatever regulations the president writes may be changed by Congress later on or rewritten by a future president. Or as one high-ranking military officer put it: We've learned quite properly to be paranoid about what this administration does, but if you were looking at this language without the history of the last few years you'd be perfectly satisfied. Then he sighed and said, we'll just have to wait and see.

Nina Totenberg, NPR News, Washington.

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