Nat Hentoff : Detainees compromise: Lose-lose

Detainees compromise: Lose-lose

by Nat Hentoff | September 27, 2006

The rebellion by Republican Sens. John McCain of Arizona, John Warner of Virginia and Lindsey Graham of South Carolina against the president's proposed legislation to comply with the Supreme Court's June decision on the treatment of enemy combatants (Hamdan v. Rumsfeld) has ended - with fanfare - in a "compromise."

McCain, who has insisted that the principles he fought for are more important than his chances for the presidency, declared: "There's no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved." He also said, "We got what we wanted."

But the Supreme Court, in rebuking the president for having violated Common Article 3 of the 1949 Geneva Conventions (to which the United States is a signatory), made plain both the letter and spirit of this minimal standard of "humane treatment."

Article 3 prohibits "at any time and in any place whatsoever ... cruel treatment and torture ... (and) outrages upon personal dignity, in particular, humiliating and degrading treatment."

The president is also pleased with this compromise because, he says, it preserves "the
CIA program to question the world's most dangerous terrorists and to get their secrets."

The CIA program involved, as the president has said, "alternative techniques" of interrogation - details of which have been revealed by human rights groups, reporters and McCain himself as specifically and vividly violating the letter and spirit of Article 3.

How, then, does this compromise, as McCain says, result in no losers, only winners and winners? The agreement prohibits - under our own 1996 War Crimes Act - such "grave breaches" of the Geneva Conventions as torture, rape and murder. (These are actual war crimes under that 1996 statute.)

President's role

But, in this three-card-monte game of compromise, it is the president who will have the dominant role in deciding, by executive order, which alternative techniques are grave breaches. How will we know whether the CIA, or any of our interrogators, are committing these war crimes? We won't know all of them, and maybe none.

National security adviser
Stephen Hadley points out that "specific techniques" used on terrorism suspects are classified. (We can't let the terrorists know what's in store for them once they're taken into custody.)

As for practitioners of such "coercive" interrogations that could lead to charges of war crimes under American law, the "compromise" protects them from prosecution for past violations. This is known in our lingo as a "get-out-of-jail-free card."

Logically, I would think this amnesty would also include those all the way up the chain of command who authorized "alternative techniques" constituting "grave breaches" of the Conventions.

I'm not surprised that the CIA also agrees with the main belligerents that there are no losers in this agreement. And CIA operatives who have been buying government-funded liability insurance for fear of prosecution under the War Crimes Act need worry no longer.

This pact's most radical failure to adhere not only to the Geneva Conventions but also to a core right in our Constitution is in its allowing the three celebrated senators and the president to revoke habeas corpus petitions on conditions of confinement by any alien detainee - not only those at Guantanamo Bay, Cuba - designated, with or without charges, as an "enemy combatant."

This view of The Great Writ as an irritating inconvenience in the war on terrorism - particularly denounced by Graham for "clogging the courts" with detainee petitions - is embedded in the renowned
Senate Armed Services Committee bill generated by McCain, Warner and Graham. It is also included in House legislation dealing with detainees and will be enfolded in the compromise produced by the same three senators applauded by some civil libertarians for standing up to the president.

The result will be that hundreds of detainees, among them many who have never been charged with any crime, will no longer have lawyers to bring their claims of cruel, inhuman and degrading treatment by guards and interrogators. This is contrary to the Supreme Court having authorized such habeas petitions in the 2004 Rasul v. Bush ruling and Hamdan v. Rumsfeld.

Despite all the purported obeisance to the Geneva Conventions in this agreement that ended the McCain-Warner-Graham mutiny, there will be no way for Americans or the world to know whether these "enemy combatants" - many of whom might be innocent - have been subjected to the same outrages upon personal dignity that this epic struggle by the three senators presumably prevents.

When a win isn't a win

During a previous "victory" by McCain over the president - much publicized around the world - he secured an amendment in the Detainee Treatment Act of 2005 banning "cruel, inhumane and degrading" treatment of prisoners.

But in moving that legislation, including the famous McCain amendment, into law, the president added one of his elastic "signing statements" that he would not necessarily implement the amendment if it interfered with national security.

President Bush needn't slip in a signing statement this time around. With the elimination of habeas petitions on conditions of confinement, all of our interrogation centers around the world in which alien detainees are held as enemy combatants will become "black sites" - wholly outside of laws.

There will be losers after all.

Nat Hentoff is an authority on the U.S. Constitution and author of The War on the Bill of Rights and the Gathering Resistance.