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Tough and Smart

by digby

Democrats have put their trust in Senators Graham, McCain and Warner to push back against the White House, and Thursday they signaled that they intended to continue cooperating. “Five years after Sept. 11, it is time to make the tough and smart decisions to give the American people the real security they deserve,” said the Democratic leader, Harry Reid of Nevada.

Still, Senator Carl Levin of Michigan, the senior Democrat on the Armed Services Committee, said he would press to change a provision in the proposal that would deny detainees a right to challenge their captivity in court.

If you’d like to ask your Senator to support the Specter-Levin Amendment to preserve habeas corpus, you can go here for information and directions.

Update: Here’s some more of that old time clarity:

On the key issue of detainee treatment that had caused the impasse between the White House and the dissident Republicans, the two sides agreed on a list of specified crimes that would provoke prosecution of CIA interrogators and others. They also agreed that past violations of the Geneva Conventions, an international treaty barring degrading and humiliating treatment of detainees, would not result in criminal or civil legal action.

The White House, for its part, yielded in its demand to adopt, with congressional approval, a restricted definition of its obligations under Common Article 3 of the Geneva Conventions. That article requires humane treatment of detainees and bars “violence to life and person,” such as death and mutilation, as well as cruel treatment and “outrages upon personal dignity.”

The compromise language gives the president a dominant — but not exclusive — role in deciding which interrogation methods are permitted by that provision of the treaty. It also prohibits detainees from using the Geneva Conventions to challenge their imprisonment or seek civil damages for mistreatment, as the administration sought.

[…]

The biggest hurdle, Senate sources said, was convincing administration officials that lawmakers would never accept language that allowed Bush to appear to be reinterpreting the Geneva Conventions. Once that was settled, they said, the White House poured most of its energy into defining “cruel or inhuman treatment” that would constitute a crime under the War Crimes Act. The administration wanted the term to describe techniques resulting in “severe” physical or mental pain, but the senators insisted on the word “serious.”

Negotiations then turned to the amount of time that a detainee’s suffering must last before the treatment amounts to a war crime. Administration officials preferred designating “prolonged” mental or physical symptoms, while the senators wanted something milder. They settled on “serious and non-transitory mental harm, which need not be prolonged.”

These definitions appear in a section of the legislation that specifically lists “grave breaches” of the Geneva Conventions that might bring criminal penalties.

For lesser offenses barred by the Geneva Conventions — those lying between cruelty and minor abuse, putting them at the heart of the intraparty dispute — the draft legislation would give the president explicit authority to interpret “the meaning and application” of the relevant provisions in Common Article 3. It also requires that such interpretations be considered as “authoritative” as other U.S. regulations.

But the language also requires that such interpretations be published, rather than described in secret to a restricted number of lawmakers. That provision was demanded by the dissident lawmakers, who resented the administration’s past efforts to curtail the number of members who were told of its policies. The provision also affirms that Congress and the judiciary can play their customary roles in reviewing the interpretations, a statement that Senate sources say the White House vigorously resisted.

A senior administration official, who spoke on the condition of anonymity, said in an interview that Bush essentially got what he asked for in a different formulation that allows both sides to maintain that their concerns were addressed. “We kind of take the scenic route, but we get there,” the official said.

So the good news is that these fine Republicans were all able to sit in Dick Cheney’s Senate office and hash out what “amount of time that a detainee’s suffering must last before the treatment amounts to a war crime” in the last three days. We can sleep better tonight knowing that they decided that the suffering must do “serious and non-transitory mental harm, which need not be prolonged.” Excellent. And now we know that “cruel or inhuman treatment” that would constitute a crime under the War Crimes Act is comprised of “techniques resulting in ‘serious’ physical or mental pain, rather than ‘severe.'” That’s just the kind of “clarity” they’ve been looking for. On with the interrogations.

Oh and they will leave it up to the president to decide if standing shackled naked in a cold room with ice water splashed randomly on you for 72 hours is torture. Or if being forced to walk around on a leash like a dog or have fake menstrual blood smeared all over your face is degrading. (I wonder what he’ll say?)

The best part is that they might let the prisoners see classified evidence used against them that’s been redacted or summarized, nobody who was tortured will be able to sue the government or hold anyone in it legally liable and there’s a nice fat habeas corpus loophole so these embarrassingly innocent people down in Gitmo will stay under wraps.

It’s tough and smart for St John and the Republicans, for sure. For reasonable people, not so much. This is a terrible bill and I don’t think the Democrats will get any benefit from backing it.

Update: The NY Times Editorial Board doesn’t think it’s much of a bill either.

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