The Compromise on Terrorist Interrogation and Military Commissions
Posted by wpcomimportuser1 | Email This | Permalink | Email Author
The compromise on terrorist interrogation and military commissions reached yesterday is a good one, but it sets up a House-Senate conference battle in which too much is at risk. Sen. Frist may put it up for Senate floor debate today.
In short, the compromise:
* Precludes a private right of action (i.e., the ability of a person to enforce in court) in either habeas corpus litigation or a civil case, the "rights" granted under the Geneva Conventions;
* Specifies the war crimes that will comprise violations of Common Article 3 of the Geneva Conventions and says no foreign or international law can be used by US courts to further define those crimes;
* Gives the president further authority to promulgate higher standards of conduct for terrorist interrogators;
* Defines, reasonably well, the "cruel or inhuman treatment" vague terms used in the McCain amendment of 2005 and Common Article 3;
* Restores the definitions for "cruel, inhuman or degrading treatment" in the pre-McCain Amendment Title 18 Section 2340, US Code; BUT
* Retains the McCain amendment definitions as well.
The interpretation of law requires that the general language in the McCain amendment will yield to the specific language in Section 2340. Unless.
Unless the House-Senate conference mucks it up again. So far, this is a near-total win for the White House. But the fight is a long way from ending. McCain obviously will try again in conference. If he wins there, all gained so far will be lost.

