Bring It On!

Agreement Is Reached on Detainee Bill - New York Times

September 21st, 2006 | by Craig R. Harmon |

Mr. McCain said the agreement means “that the integrity and letter and spirit of the Geneva Conventions have been preserved.” The senator said the agreement “gives the president the tools that he needs to continue to fight the war on terror and bring these evil people to justice.”

But Mr. Hadley added a note of conditionality, calling it a “framework for compromise,” and Mr. Warner said that only President Bush’s signature on the bill would complete the agreement.

Mr. Bush welcomed the accord, which he said met his key test of allowing the Central Intelligence Agency’s interrogations of terror suspects to continue.

“I’m pleased to say this agreement preserves the most single, the most potent tool we have in protecting America and foiling terrorist attacks,” he said, adding, “The agreement clears the way to do what the American people expect us to do — to capture terrorists, to detain terrorists, to question terrorists, and then to try them.”

The details have yet to be seen but it does appear that the President got much of what he wanted. For example:

Senator Bill Frist of Tennessee, the majority leader, said the agreement had two key points. “Classified information will not be shared with the terrorists” tried before the tribunals, he said. And “the very important program of interrogation continues.”

So classified info that forms a part of the evidence against the defendant won’t be shown to the defendant. The question remains as to whether the defense attorneys will get to see it but not allowed to share it with the defendants or whether the defense will be totally blind to some of the evidence.

Also, what does “the very important program of interrogation continues[]” mean, exactly. That it continues with new and clarified rules for interrogation? That it continues substancially as it has been carried on up to the Hamdan ruling? We don’t know yet.

I don’t see what the agreement means for the use of coerced evidence at trial. It is mentioned that this was one of the concerns of the three Republicans that opposed the Bush tribunal bill but it’s not mentioned how that came out so we’ll have to wait and see.

Finally, rather cryptically but, perhaps, good news to many here, we have this:

[T]he White House reportedly dropped its insistence on redefining American obligations under the Geneva Conventions.

Hopefully we’ll get more details soon.

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  1. 11 Responses to “Agreement Is Reached on Detainee Bill - New York Times”

  2. By ken grandlund on Sep 21, 2006 | Reply

    Well, Craig, we shall see what comes of this. Of course, it still needs to pass through both houses of Congress before it gets to Bush.

    As they say…the devil is in the details.

    The bit about withholding evidence against a defendant leaves open the suggestion of kangaroo courts- I think that the concerns of classified information being made public could be avioded without revealing classified information by having that information available to the defense attorney with the caveat that it remain classified. Both attorney and client could be restricted from revealing the information publically, but could at least address its reliability in closed court session.

    I’d like to see the final details emerge, but seriously doubt we’ll be made aware of the specific ‘methods of interrogation’ that are ultimately approved, under the guise of classified information.

  3. By Craig R. Harmon on Sep 21, 2006 | Reply

    Ken,

    I, too, have concers about withholding evidence and resulting kangaroo courts but I can see withholding the names of witnesses if revealing those names would endanger their lives or eliminate their continued usefullness as, for example, spies within Al Qaeda or within the radical Muslim community. It’s no more wise to reveal such people than it was wise to reveal Valerie Plame. And I have to wonder about the wisdom of this:

    Both attorney and client could be restricted from revealing the information publically, but could at least address its reliability in closed court session.

    Now at least the lead attorneys will have clearance, I imagine but do you really want to trust Khalid Sheik Muhammad not to reveal classified information back to the terrorists that might help them? Somehow I don’t think a non-disclosure contract will cut it with someone who masterminded the murders of nearly 3,000 people.

    You don’t think that the specifics, if not revealed by the Administration or Congresspersons, will be leaked tout suite by the same folks that have been leaking like a seive for some time now? I think we’ll know.

  4. By ken grandlund on Sep 21, 2006 | Reply

    I thought about that too, and I imagine that KSM hasn’t had too much contact lately with his fellow terror buddies. Assuming that once convicted (and during trial) these guys are held in maximum security type situations, and limiting the people who have access to the info, it would be pretty easy to retain that info from getting out. And if it did manage to get out, it’d be pretty easy to find out who did it and prosecute the hell out of them.

     

  5. By Craig R. Harmon on Sep 21, 2006 | Reply

    Ken,

    Yes, I don’t imagine that there’s any way in heck that KSM won’t be convicted and sent away for life but what about more difficult cases. I don’t figure all of these guys will be convicted. What about people that, for one reason or another, are tried and acquitted? Not only would they be free to leave and join in the battle again, as has happened with previous released detainees, but they will be free to share whatever they learened in their trials.

  6. By Craig R. Harmon on Sep 21, 2006 | Reply

    More news on the agreement from Stephen Hadley, National Security advisor, as reported by Byron York in The Corner at National Review Online:

    National Security Adviser Stephen Hadley just finished a conference call with reporters to discuss the detainee treatment deal.  Hadley said the president’s “sole standard” with respect to the Geneva Convention’s Common Article Three was “whether the CIA will be able to go forward with a program for questioning terrorists….The good news is that the program will go forward, and that the men and women who are asked to carry out that program will have clarity as to a legal standard, will have clear Congressional support, and will have legal protection.”

    Hadley said the deal does three things on the question of detainee treatment.  One, it will “enumerate those actions that will constitute violations of Common Article Three, that are grave breaches of Common Article Three.”  Two, it affirms the Detainee Treatment Act, or the McCain Amendment, and “provides that the president will take action to ensure compliance.”  And three, “There is a provision that makes clear that the president has the authority, as provided by the Constitution and this legislation…for the U.S. to interpret the meaning of the Geneva Conventions, including Common Article Three.”

    That last could make a lot of people unhappy, including Collin Powell.

    When asked what would constitute “grave breaches” of Common Article Three, Hadley listed “torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, rape, causing serious bodily injury, and sexual assault or abuse.”  He was asked whether waterboarding would be on that list, and he answered, “We are not going to get into a discussion of particular techniques.” 

    As for the president’s interpreting the meaning of Common Article Three, it appears the deal recognizes the president’s authority to issue executive orders clarifying the nature of violations that do not rise to the standard of “grave breaches.”

    Later, Hadley gave a non-answer when asked whether all interrogation techniques used up until now would be permissible under the new agreement.  “Obviously we want to come up with a program that will be supported by the Congress and the people,” Hadley said.  “The bottom line is to get an effective means of getting information from terrorists who have information that we need to get in order to disrupt plots and protect Americans.”

    Finally, Hadley was asked what the administration gave up in the deal.  “This was a situation where we both, the Congress and the administration, shared a common objective,” Hadley said.  “What we did in a fairly creative way was come up with ways that we could achieve that objective.”  When asked again whether there was anything the administration didn’t get, Hadley said, “I’ve said all I’m going to say on that issue.” 

    Looks ominous. One has to wonder what McCain got that he would go this far? Backing for an ‘08 presidential run? 

  7. By Craig R. Harmon on Sep 21, 2006 | Reply

    For those who are interested, here’s more info on the deal. You probably won’t like it.

  8. By Craig R. Harmon on Sep 21, 2006 | Reply

    Then there’s this reaction from the ACLU. They are NOT amused.

    More from Hadley, this time on sensitive intelligence. It won’t be shared. 

  9. By ken grandlund on Sep 22, 2006 | Reply

    Looks like a total capitulation then to me. And as I was driving home it occurred to me that whatever the final bill contained, Bush would likely submit another infamous signing statement and do whatever he decided to do anyhow.

    As to the first link- like it or not, Bush will define what constitutes ‘non grave breaches’ but that is no guarantee that other nations will agree with him and likely won’t protect any US agents from prosecution in other countries that detain and charge them. It also opens the door for other nations to act in a similar manner, opening up US troops to unknown forms of interrogation. This, to me, seems to be the beginning of the undoing of the 3rd Geneva Convention.

    As for the ability of an accused to know evidence against him, again Bush wins the day. But in the end, America loses it’s moral authority, it’s credibility, and in all liklihood, a fair amount of allied good will.

    I agree that McCain caved in a big way and surely is getting something out of this deal that at this point is unknown. Either that or he had more reasons to capitulate than to stand strong against the beginnings of a new American form of tyranny.

    What a dark road we travel.

  10. By Paul Watson The Cranky Brit on Sep 22, 2006 | Reply

    Just to comment from a different perspective, it is currently the case in the UK that under certain circumstances, information can be given to a specially appointed defence lawyer with security clearance, but that this information cannot be revealed to the client. This is better than nothing but has the obvious problem that it is very hard for a lawyer to refute something without knowing his client’s take on the evidence.

    But yes, from what I have read and heard, this does not sound like anything other than giving the PResident everything he asked for. The Geneva Conventions are left alone, but the American law that enforces them is changed. So theoretically any other country can keep the Conventions but make sure that nothing can be prosecuted domestically. That doesn’t seem to be a good way to go.

  11. By Paul Watson The Cranky Brit on Sep 22, 2006 | Reply

    And, Craig,

    Not only would they be free to leave and join in the battle again, as has happened with previous released detainees, but they will be free to share whatever they learened in their trials.

    If they’re found not guilty then they weren’t on the battlefield in the first place, no? Innocent until proven guilty, remember? I know mistakes will be made, but the majority of detainees released have not gone to the battlefield, back or no, and it’s a tad unfair to imply, even unintentionally, that they did.

  12. By Craig R. Harmon on Sep 22, 2006 | Reply

    Paul,

    If they’re found not guilty then they weren’t on the battlefield in the first place, no? Innocent until proven guilty, remember?

    As a legal fiction required in order to give every defendant a fair trial, yes. No one believes that that is anything but a fiction which may or may not be true in fact with respect to any given defendant. In fact many of the people brought to court are guilty, whether they are found guilty or not they are found guilty or not guilty. In fact, we know that a number of people released from Guantanamo HAVE returned to battle and been either killed or recaptured. A not guilty finding means that the government failed to meet their burden of proof. It says nothing about whether the defendant did what he was accused of doing.

    I believe that there are people in our custody who were on the field of battle, who may be aquitted for that reason and who will then return to the fight when released. Releasing them after having shared with them every bit of secret intelligence, the name of every witness against them, and any other secret used at trial will have bad consequences. That’s all I’m saying.

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