Jim Lobe

WASHINGTON, Sep 22 2006 (IPS) — Human and civil rights groups have broadly denounced a compromise deal on the application of the Geneva Conventions to detainees in the “global war on terror” worked out between the White House and a group of rebellious Republican senators whose efforts have been backed until now by their Democratic colleagues.

While the deal, the product of two weeks of intense negotiations, appeared to make some concessions to the rebels, who were also supported by scores of retired senior military officers, including former Secretary of State Colin Powell, most analysts expressed scepticism that it would make a substantial difference in the way the administration intends to treat detainees at Guantanamo Bay and elsewhere.

Those doubts were bolstered by statements by the White House Friday in which top officials asserted that the proposed legislation would permit the Central Intelligence Agency (CIA) to use what the White House calls “alternative interrogation procedures” against “high-value” terrorist suspects.

President George W. Bush himself insisted that the agreement “preserves the single-most potent toll we have in protecting America and foiling terrorist attacks, and that is the CIA programme to question the world’s most dangerous terrorists and to get their secrets.”

At the same time, Bush’s national security adviser, Stephen Hadley, declined to answer a reporter’s question about whether “waterboarding”, a technique that rights groups and even the State Department have long denounced as torture, could be permitted under the compromise.

His refusal came just hours after one of the three rebel senators, John McCain, asserted that the deal’s language barred waterboarding and other “grave breaches” of the Geneva Conventions.

“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… and that there will be very little pretense about it,” according to Marty Lederman, an international law professor at Georgetown University School of Law, who suggested that the White House had gotten the better of the rebels.

His interpretation of the deal’s likely impact on the CIA’s legal authority to use cruel or inhuman interrogation methods in defiance of the Conventions’ Common Article 3 was similar to that of Human Rights Watch, the American Civil Liberties Union (ACLU) and most other groups.

“The definition of what is cruel and inhuman is narrowly drawn,” Human Rights Watch said in a statement Friday. “While it should be sufficient to prohibit the most abusive CIA techniques, the administration may try to interpret it as allowing certain humiliating and degrading practices banned by Common Article 3.”

“Victims of the very abusive practices that the legislation outlaws would be forever precluded from challenging – and bringing to light – those abuses. Courts would have no power to stop even ongoing torture,” the group said.

The ACLU’s legislative director, Caroline Fredrickson, assailed the deal as a “compromise of America’s commitment to the rule of law.”

Like other groups, she cited provisions in the bill, which will be taken up by the Republican-led House of Representatives next week, that would permit testimony that was coerced through cruel or inhumane treatment to be used as evidence in military trials, preclude the judicial branch from reviewing the government’s compliance with the Geneva Conventions, and deny detainees the right to challenge their status in court.

“It is essential that the bill be amended to ensure that all detainees have access to the courts to challenge the legality of their detention and their treatment,” said Human Rights Watch Executive Director Kenneth Roth.

“This ‘deal’ still wipes out habeas corpus,” noted Michael Ratner, president of the Centre for Constitutional Rights. “(Its) abolishment is the equivalent of the authorisation of executive detention – one of the hallmarks of a police state.”

Ratner and other activists also noted that the compromise, if approved, would retroactively immunise military and CIA staff from prosecution under the 1995 War Crimes Act for violations of the Geneva Conventions committed during the “war on terror”.

“This ‘deal’ amnesties those in the administration who may be guilty of war crimes as Argentina and Chile tried to do during their ‘dirty wars’,” Ratner said. “That is illegal under international law.”

The deal marks the latest round in a complicated battle over the rights under U.S. and international law of detainees held by the U.S. in the administration’s anti-terrorist campaign.

At the beginning of its war on terror, the administration insisted that such prisoners were not entitled to the protections provided under the Geneva Conventions, including Common Article 3, which has traditionally applied to civilian detainees.

Among other provisions, Article 3 requires humane treatment of detainees “in all circumstances” and bans “cruel treatment and torture” or “outrages upon personal dignity, in particular humiliating and degrading treatment.” It also requires that all detainees be given a fair trial with all the guarantees “recognised as indispensable by civilized peoples.”

Bush’s position sparked considerable criticism, not only from human rights groups and U.S. allies, but also internally from career military professionals, including Powell, a former chairman of the Joint Chiefs of Staff, and the State Department. They argued – unsuccessfully – that Washington’s refusal to apply the Conventions would encourage other treaty signatories to do the same, enhance the risks that U.S. soldiers and other personnel would also face abuse, and create confusion within the military, which was trained to adhere to the Conventions.

Those concerns were shared not only by Democrats, but also by a number of senior Republican senators with close ties to the military, including the chairman of the Armed Services Committee, John Warner; McCain, who had himself suffered torture as a prisoner of war in Vietnam; and a military lawyer in the reserves, Lindsay Graham.

It was they who, after the Supreme Court ruled last summer that Article 3 of the Conventions was indeed applicable to all detainees held by the United States, began pressing for legislation that would ensure U.S. compliance, particularly with respect to Article 3’s prohibition on “cruel treatment and torture”.

While the Pentagon quickly issued such a directive to all its personnel, the administration complained that some of the Article’s terms were “too vague” and that, in any event, the CIA’s programme of “alternative interrogation procedures” – which range from sleep deprivation and stress positions to exposure to extremes of cold and heat and waterboarding – needed to be retained.

Two weeks ago, Bush announced that the 14 “high-value” detainees held incommunicado for up to several years by the CIA had been transferred to Guantanamo and urged Congress to quickly pass comprehensive legislation that would not only permit them to be tried before military commissions, but also redefine compliance with Article 3 in a way that would preserve the CIA’s interrogation programme.

While the administration had hoped to rally Republicans, who hold majorities in both houses of Congress, behind the legislation, the three rebels, backed by the Democrats and Powell, among others, refused to go along, demanding instead that all efforts to redefine Article 3 be deleted from the bill.

Superficially, it appears from the draft legislation agreed by both sides Thursday night that the administration conceded that point.

Indeed, one group, Human Rights First, interpreted the deal as written a clear victory for McCain and the others. “The language in today’s agreement makes clear that ‘alternative interrogation procedures’… are not only prohibited by the (Conventions), they are war crimes,” said HRF’s Washington director, Elisa Massimino, echoing McCain himself.