Fool Me Twice

The detainee deal is a betrayal of the principles that Sen. John McCain and his colleagues have struggled to uphold.

Last year, Sens. John McCain and Lindsey Graham openly defied the president over the use of torture and cruel, inhuman and degrading treatment against post-9/11 detainees. A few weeks later, Sen. McCain stood with a smiling President Bush at the White House and announced their agreement on an amendment to require the president to abide by internationally recognized norms of civilized treatment of detainees.

That bill, the Detainee Treatment Act, was an important reaffirmation of the principles embodied in the Geneva Conventions at a time when the U.S. government was actively undermining them. But in other critical respects, the deal fell short: it did not provide any means of enforcing its provisions and expressly closed off the legal avenues by which those who were wrongly imprisoned at Guantanamo could apply to the courts for relief. For good measure, the president quietly issued a signing statement reserving the right to disregard the new statute altogether.

In recent weeks, Sen. McCain and his Armed Services Committee colleagues have again been locked in a battle with the White House over the treatment and trial of post-9/11 detainees. On Thursday, they reached another agreement with the White House and again claimed victory. Emerging from a 4-1/2-hour negotiation in—of all places—Vice President Cheney’s Senate office, McCain declared, “The integrity and letter and spirit of the Geneva Conventions have been preserved.”

The letter of the Conventions was certainly preserved: the bill refuses the president’s demand that Congress rewrite the law to reinterpret U.S. obligations under the Geneva Conventions.

But their integrity and spirit is another matter.

Instead of reinterpreting the Conventions directly, the bill does so indirectly, granting the president the authority to issue his own interpretations and making them virtually unchallengeable in court. The bill strips detainees of the ability to challenge the factual and legal basis for their confinement. And it confers retroactive immunity on government officials responsible for serious human rights violations by permitting prosecutions under the War Crimes Act of only the grossest abuses.

What this means is that instead of curbing the secret detention and abuse of terrorist suspects, the bill would authorize the president to continue these practices. While certain “grave breaches” of the Geneva Conventions would be outlawed, the bill leaves ambiguous which of the catalogue of “alternative interrogation procedures” employed by the CIA would be prohibited.

The senators were more successful in forcing the administration to accept rules for military commissions that enable the accused to challenge the evidence use against him. Yet the White House insisted on retaining language that would permit the use of evidence obtained through coercion if a judge finds it “reliable.” Coerced evidence is prohibited in both civilian and military courts because it is inherently unreliable, and the president’s insistence on including such provisions not only compromises the fairness of the proceedings but undermines the credibility of whatever verdicts may eventually be handed down.

In short, this latest deal between Sen. McCain and the White House is a deep disappointment. It is a betrayal of the principles which Sen. McCain and his colleagues have struggled to uphold. As the bill makes its way to the Senate floor, there may yet be time to address some of its most serious shortcomings, but the day grows short.

Read the letter sent to the Senate and this letter sent to the House by the Center for American Progress Action Fund and coalition partners urging the rejection of the Military Commissions Act of 2006.

Read Statement from the Center for American Progress:

Read the letter sent today to the Senate, and this letter sent to the House by the Center for American Progress Action Fund to members of the House and Senate expressing concerns about this legislation.

Read also:

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