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Bush Gets His Way

By Dan Froomkin
Special to washingtonpost.com
Friday, September 22, 2006; 12:42 PM

Pay no attention to the news stories suggesting that the White House caved in yesterday.

On the central issue of whether the CIA should continue using interrogation methods on suspected terrorists that many say constitute torture, the White House got its way, winning agreement from the "maverick" Republican senators who had refused to go along with an overt undoing of the Geneva Conventions.

The "compromise"? The Republican senators essentially agreed to look the other way.

Once again (see Monday's column ) there was so much disingenuousness flying through the airwaves that straight news reporting simply wasn't up to the task of conveying the real meaning of the day.

So let's go to the editorials and opinion columns.

Editorials and Opinions

The Washington Post editorial board writes: "Mr. Bush, as he made clear yesterday, intends to continue using the CIA to secretly detain and abuse certain terrorist suspects. He will do so by issuing his own interpretation of the Geneva Conventions in an executive order and by relying on questionable Justice Department opinions that authorize such practices as exposing prisoners to hypothermia and prolonged sleep deprivation. Under the compromise agreed to yesterday, Congress would recognize his authority to take these steps and prevent prisoners from appealing them to U.S. courts. The bill would also immunize CIA personnel from prosecution for all but the most serious abuses and protect those who in the past violated U.S. law against war crimes.

"In short, it's hard to credit the statement by Sen. John McCain (R-Ariz.) yesterday that 'there's no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved.' In effect, the agreement means that U.S. violations of international human rights law can continue as long as Mr. Bush is president, with Congress's tacit assent. . . .

"[T]he senators who have fought to rein in the administration's excesses -- led by Sens. McCain, Lindsey O. Graham (R-S.C.) and John W. Warner (R-Va.) -- failed to break Mr. Bush's commitment to 'alternative' methods that virtually every senior officer of the U.S. military regards as unreliable, counterproductive and dangerous for Americans who may be captured by hostile governments. . . .

"Mr. Bush wanted Congress to formally approve these practices and to declare them consistent with the Geneva Conventions. It will not. But it will not stop him either, if the legislation is passed in the form agreed on yesterday."

The New York Times editorial board writes: "The deal does next to nothing to stop the president from reinterpreting the Geneva Conventions. While the White House agreed to a list of 'grave breaches' of the conventions that could be prosecuted as war crimes, it stipulated that the president could decide on his own what actions might be a lesser breach of the Geneva Conventions and what interrogation techniques he considered permissible. It's not clear how much the public will ultimately learn about those decisions."

David Ignatius 's Washington Post opinion column today chronicles the administration's astonishing and undercovered torture-related legal wranglings, which date back to the decision to rough up terror suspect Abu Zubaida in 2002.

"From the outset the CIA officers wanted written assurance that what they were doing was legal. The Justice Department prepared an initial (and now infamous) August 2002 memo from Jay S. Bybee, head of the Office of Legal Counsel, with the chilling advice that techniques were permissible if they didn't produce pain equivalent to that caused by 'organ failure, impairment of bodily function or even death.' The Bybee torture memo was withdrawn, but the Justice Department offered a broad assurance in 2002 that because the program would operate outside U.S. jurisdiction, at secret sites abroad, interrogators would not be subject to U.S. law. Justice officials also argued that because captives were illegal 'enemy combatants,' they didn't have protections under the Geneva Conventions. That didn't satisfy the CIA officers running the program, especially after the uproar over Abu Ghraib, so they pressed Justice for a more detailed written opinion. It finally arrived in spring 2005.

"The real crunch came when McCain began pushing in mid-2005 for a law that would explicitly ban harsh interrogation methods. The initial response of some CIA officers staffing the program was to accept the McCain amendment, since Justice had ruled that the techniques they were using were legal. But Vice President Cheney preferred to fight McCain, and several months of bitter negotiation produced a legislative history that in CIA officers' minds removed any ambiguity -- McCain viewed the program as illegal under his new statute.

"What came next remains murky, even to those most closely involved. Rep. Duncan Hunter, the chairman of the House Armed Services Committee, demanded an assurance that the McCain amendment wouldn't harm the CIA's anti-terrorism efforts. He received a letter of assurance from John Negroponte, the director of national intelligence, even though CIA officers had advised Negroponte that the amendment would undermine the existing program. Meanwhile, President Bush signed the law but appended a signing statement that said it didn't alter the president's inherent powers, which in Cheney's view included the right to authorize the program. The administration, in other words, wanted it both ways.

"Without clear legal guidance, CIA officers suspended interrogations in December 2005. . . .

"The administration began tinkering with the program this spring, discarding some of the most extreme techniques, in an effort to make it comply with the McCain amendment."

Rosa Brooks writes in the Los Angeles Times: "[T]ake any of the 'alternative' methods that Bush wants to use on U.S. detainees and imagine someone using those methods on your son or daughter. If the bad guys captured your son and tossed him, naked, into a cell kept at a temperature just slightly higher than an average refrigerator, then repeatedly doused him with ice water to induce hypothermia, would that be okay? What if they shackled him to a wall for days so he couldn't sit or lie down without hanging his whole body weight on his arms? What if they threatened to rape and kill his wife, or pretended they were burying him alive? What if they did all these things by turns? Would you have any problem deciding that these methods are cruel? . . .

"[T]hough the word 'accountability' isn't in the White House dictionary, there's a long entry under 'CYA -- covering your ass.'

"Bush isn't stupid. He understands that it's far too late for him to leave a legacy that won't be a source of shame to future generations. So he's going for second best: a congressionally delivered 'get-out-of-jail-free' card."

Questions the Press Should Ask

Members of the traditional press were paying scant attention to the issue of state-sanctioned torture until a rift appeared within the Republican party itself. That, in Washington, qualifies as high drama.

And now that the rift has been papered over, most reporters' tendencies will be to cover the issue mostly from the angle of its effectiveness as a political cudgel in the mid-term elections.

But the American public deserves to hear a full and open debate on this important moral issue. And if Congress won't host it, then it's up to the Fourth Estate to rise to the challenge.

Step one would be some actual reporting into the CIA interrogation program, including aggressive truth-squadding of the assertions coming from the White House. President Bush, for instance, yesterday called the program the "most potent tool we have in protecting America and foiling terrorist attacks."

Can he back that up? What little investigative reporting I've seen on the program thus far, by Ron Suskind among others, suggests that Bush's assertion is exaggerated or just plain wrong -- and that in fact the use of torture or near-torture has produced little or no valuable information. It's imperative that the media give the public a better sense of whether Bush is credible on this issue.

Here's a question reporters should be asking: If, as Suskind has alleged, the administration is aware that those harsh CIA interrogation tactics don't really work -- and no one is currently in CIA detention anyway -- then why is this such an important issue for the White House? One possible answer: That this has nothing to do with the future; that it's about giving them cover for their actions in the past.

Here's another question reporters should be asking: Have the senators been assured that Vice President Cheney won't get Bush to attach a "signing statement" to this bill, asserting his inherent powers, as he did the last time he signed torture legislation?

Finally, as the White House gears up to use detainee policy as a political issue, it is incumbent on the press to remind the public that there are not only two choices: Doing it Bush's way and letting terrorists go free. Even if the Democrats aren't coherent about other alternatives, the press should be.

The Coverage

It's the penultimate paragraph of R. Jeffrey Smith and Charles Babington 's article in The Washington Post this morning that tells the story in a nutshell: "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 their concerns were addressed. 'We kind of take the scenic route, but we get there,' the official said."

(Interestingly enough, Dan Bartlett, counselor to the president, gave a nearly identical quote on the record to the New York Times .)

Smith and Babington write: "Yesterday's final marathon talks occurred in Vice President Cheney's little-known office on the second floor of the Dirksen Senate Office Building. . . .

"The agreement coalesced around two crucial issues: the GOP senators' insistence that Bush not be allowed to reinterpret the meaning of the Geneva Conventions, and the White House's insistence that CIA agents not be subject to prosecution for aggressive interrogation techniques -- tactics that did not constitute torture but were more aggressive than 'simple assault.'

"The biggest hurdle, Senate sources said, was convincing administration officials that lawmakers never would 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 crimes under the War Crimes Act."

Rick Klein writes in the Boston Globe: "Unlike the Geneva Conventions, the War Crimes Act is an American law that applies only to U.S. officials and is not part of an international treaty. Rewriting the War Crimes Act to outlaw specific acts -- and implicitly permitting others -- does not erode the Geneva Conventions, which broadly state that countries can't engage in 'outrages upon personal dignity,' said Senator Lindsey O. Graham, Republican of South Carolina."

Margaret Talev writes for McClatchy Newspapers that Graham "said he believed the compromise would prohibit simulated drowning, or 'water-boarding' as a CIA interrogation technique.

"But Graham didn't rule out other aggressive techniques such as sleep deprivation or playing loud music. He said the legislation wouldn't spell out which 'alternative interrogation techniques' are permitted and which are prohibited. . . .

"Eugene Fidell, the president of the National Association of Military Justice, which serves as a watchdog over military prosecutions, said details of the deal were too scant to render an analysis. He sharply criticized the closed-door negotiations, saying the terms should have been the subject of public Senate hearings."

Julian E. Barnes and Richard Simon write in the Los Angeles Times (in a story headlined, "Bush Bows to Senators on Detainees"): "A Senate staffer involved in negotiations said [the language of the accord] would ban the most outrageous of CIA methods, including water boarding -- a tactic in which detainees are made to feel as if they're drowning -- and mock executions."

And here's precisely the kind of story to watch out for:

Anne Plummer Flaherty writes for the Associated Press: "Republicans hope that an accord reached between the Bush administration and GOP senators on the treatment of terror-war detainees means the party can go on a campaign-season offensive on the issue of protecting the country. . . .

"The agreement was hailed by human rights groups and seen by many as the president caving in when his usual Republican support crumbled."

Hadley Speaks

Here's the transcript of an extraordinarily unhelpful telephone briefing from national security adviser Steve Hadley yesterday afternoon.

He expressed delight about the accord and how "all Republicans coming together," and repeatedly referred to a new legal "clarity" -- that he wouldn't clarify. Among the questions he dodged:

* "Does that mean that every single technique used in interrogation up until now is, as you see it, permissible under this agreement?"

* "Just to follow up, is it conceivable that a technique that was used in the past would not be permissible henceforth after this process is finished?"

* "What did the administration give up in this negotiation? Because it seems like you got everything that you asked for."

ACLU Watch

Caroline Fredrickson, director of the ACLU's Washington office released this statement : "This is a compromise of America's commitment to the rule of law. The proposal would make the core protections of Common Article 3 of the Geneva Conventions irrelevant and unenforceable. It deliberately provides a 'get-out-of-jail-free card' to the administration's top torture officials, and backdates that card nine years. These are tactics expected of repressive regimes, not the American government.

"Also under the proposal, the president would have the authority to declare what is -- and what is not -- a grave breach of the War Crimes Act, making the president his own judge and jury. This provision would give him unilateral authority to declare certain torture and abuse legal and sound. In a telling move, during a call with reporters today, National Security Advisor Stephen Hadley would not even answer a question about whether waterboarding would be permitted under the agreement."

Lederman Watch

Georgetown Law School professor and blogger Marty Lederman has the complete language of the accord, and concludes: "It's not subtle at all, and it only takes 30 seconds or so to see that the senators have capitulated entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in cold cell, long time standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the president the authority to interpret 'the meaning and application of the Geneva Conventions' 'for the United States,' except that the bill itself would define certain 'grave breaches' of Common Article 3 to be war crimes. Some Senators apparently are taking comfort in the fact that the Administration's interpretation would have to be made, and defended, publicly. That's a small consolation, I suppose; but I'm confident the creative folks in my former shop at [the Justice Department's Office of Legal Counsel] -- you know, those who concluded that waterboarding is not torture -- will come up with something."

Remember Habeas

Warren Richey writes in the Christian Science Monitor: "In a significant but little-discussed move, the Bush administration is asking Congress to strip the federal courts of jurisdiction to hear cases brought by Guantánamo detainees challenging the legality of their confinement. . . .

"Legal analysts say the measure has sparked surprisingly little debate among lawmakers. For example, the main alternative to the administration's bill, legislation sponsored by Sens. John Warner (R) of Virginia and Lindsey Graham (R) of South Carolina, also calls for withdrawing federal court jurisdiction to hear such cases.

"Nonetheless, there is opposition.

"'We are told this legislation is important to the ineffable demands of national security, and that permitting the courts to play their traditional role will somehow undermine the military's effort in fighting terrorism. But this concern is simply misplaced,' writes a group of prominent retired federal appeals court judges, in an open letter to members of Congress. . . .

"The judges say the proposed legislation may violate the Constitution's mandate that 'the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.'

"The so-called Great Writ is a bedrock principle of liberty dating to 1215 and the Magna Carta. It entitles a prisoner to demand to be brought before a neutral judge to force the government to prove the legality of his or her detention or be set free. It is the quintessential check on executive power."

A New Battle Cry

Jim Rutenberg writes in the New York Times: "President Bush began a blistering new political offensive on Thursday, asserting that if Democrats won control of Congress from Republicans it would mean higher taxes, less money in the pockets of working families and damage to the economy.

"The speech by Mr. Bush here, in which he belittled Democrats as 'the party of high taxes,' signaled what Republicans described as a new phase of the White House's fall campaign, as Republicans begin to combine their emphasis on national security with a tough new emphasis on the issue that unites them more than any other, taxes."

October Surprise?

Ronald Kessler writes for the right-wing Newsmax Web site: "In the past week, Karl Rove has been promising Republican insiders an 'October surprise' to help win the November congressional elections. . . .

"Rove is not saying what the October surprise will be."

Rove told Kessler: "I'd rather let the balance [of plans for the elections] unroll on its own."

Poll Watch

The White House that officially doesn't give a hoot about polls . . . sent out an e-mail to reporters this morning trumpeting Bush's bump in approval ratings.

"Presidential Job Approval Ratings Continue To Rise" says the release from the White House Office of Strategic Initiatives.

Graymail Watch

Could a Scooter Libby graymail attempt work? His legal team won a potentially significant legal victory yesterday, over his ability to use classified materials in his trial in the CIA leak case.

Matt Apuzzo writes for the Associated Press: "Prosecutors have said Libby is trying to torpedo the case by demanding documents that are too sensitive to be released at trial. It's a tactic known as 'graymail' and the goal is to get a case dismissed. . . .

"Special Prosecutor Patrick Fitzgerald proposed a strict legal test that would have forced Libby to prove that his need for the records outweighed the government's need to keep them secret.

"U.S. District Judge Reggie Walton rejected the prosecutor's proposal. When considering what classified information should be admissible at trial in Libby's defense, Walton said he'll apply the standard rules of evidence, which generally provide defendants documents that are relevant and helpful. . . .

"Walton . . . said the government must weigh the importance of prosecuting the case against the need to keep state secrets.

"If secrecy is more important, the government can withhold any documents it chooses, Walton said, even though that might mean the case is dismissed."

Clinton Watch, Part I

Former president Bill Clinton on Iraq, in an interview with CNN's Larry King Wednesday night:

"KING: Vice President Cheney said, knowing all he knows, he'd still go back. Would you?

"CLINTON: Of course he would. No, I never was in favor of doing it before the U.N. inspectors finished. I had a totally different take on this. I . . . .

"KING: Why would you say 'of course he would'?

"CLINTON: Because they didn't -- because the evidence has made clear now that he and the other proponents of the Iraq war did not care whether he had weapons of mass destruction, did not care whether he was involved with Sept. 11, did not care whether the evidence showed any of this or not, that they had made their mind up in advance that this was the thing to do, that it would help to make a new Middle East, it would strengthen America's leverage against Iran; it would, you know, shake up the authoritarian regimes and increase our leverage to create peace between the Israelis and the Pakistanis -- Palestinians.

"And I think they thought it might clean their own skirts a little, since most of what Saddam did that was really terrible he did when he had the full support of the Republican administration of the '80s, of which Dick Cheney was a part."

Clinton Watch, Part II

Glenn Thrush writes for Newsday: "Sen. Hillary Rodham Clinton's campaign is daring President George W. Bush to stump in New York for her Republican opponent -- joking that Clinton would even consider paying for Bush's airfare if he stumped in Dubya-phobic Gotham. . . .

"White House spokeswoman Emily Lawrimore responded, 'There are a number of places we're confident that Republican candidates would be willing to pay for Hillary to campaign.'"

Froomkin on the Radio

I'll be on Washington Post Radio today shortly after 2 p.m. ET.

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