Thursday, September 21, 2006

THE DETAINEE DEAL: THE DEVIL IS IN THE DEFINITIONS   [Byron York]

I just got off the phone with a Senate source who sides with the McCain/Graham/Warner camp.  "I think there is every reason for both sides to be happy," he said.  The key part of the deal seems to be that Congress has defined "grave breaches" of the Geneva Conventions.  "We recognized that the president has the authority to interpret treaties," the source said, "but Congress now has the authority to define 'grave breaches.'"  Those are what might be called the Big Nine: 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.  According to the source, the proposed legislation has a section defining some of the less clear categories; there was a lot of negotiation, as you might expect, over the meaning of "cruel or inhuman" treatment.

The source stressed that "grave breaches" of Common Article Three of the Geneva Conventions have long been a crime in U.S. law. "We've enumerated what a 'grave breach' is," the source said, "but Jesse Helms and Jim Inhofe made 'grave breaches' of Article Three a war crime back in 1997."

The source said the McCain/Graham/Warner camp realized that the White House had a point when it raised the possibility that "a liberal jurist would say that a female interrogator of a Muslim male is a 'grave breach.'"  So after outlining the Big Nine, the negotiators recognized the authority of the president, in the words of the agreed-to draft, "to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions."

"'Grave breaches' are crimes," the source said. "Non-grave breaches are something else….We are going to spell out grave breaches, and then it is up to the administration to come up with sanctions for violations that are less than 'grave breaches.'"

One key aspect of the deal is that it calls for the president to use an executive order to issue his interpretations of what would be non-grave breaches of the treaty, and then — this is the important part — to publish the executive order in the Federal Register.  "That means it is subject to public scrutiny," the source said.  I asked whether the White House resisted on the issue of publishing the executive order, and the source said, "No, not at all."

Another part of the deal, the source said, is that no one will be able to use the Geneva Conventions as a basis for a court action against an individual or the U.S. government.  "There is no private right of action," the source said.

Everyone is still studying and interpreting what was done, but it seems clear now that the devil will be in the definitions.  But the fights will be within the context of U.S. law, not the Geneva Conventions.

09/21 08:20 PMShare