Are We Allowed to Hit Terrorists with Fluffy Pillows?

Byron York:

Who won? Before the final deal came out, there had been speculation that the White House had “blinked” in the much-hyped confrontation. By the end, though, representatives of both sides professed satisfaction. “I think there is every reason for both sides to be happy,” the source says. “This was a situation where both the Congress and the administration shared a common objective,” Hadley told reporters afterward. “And what we did in a fairly creative way was come up with ways that we could all support to achieve that objective.”

Is one or the other — or both — spinning? Perhaps a little, but it does appear that both sides did, in fact, get the main things they wanted. And that raises questions about whether the showdown was ever quite as fundamental as the hype suggested. The Republican “dissenters” never wanted to cripple the CIA’s interrogation program — a program hated by many of the administration’s critics on the left. Rather, they wanted to work out a way to make most of the program legal using existing American law, not the Geneva Convention. And in that, they appear to have succeeded.

During a conference call after the senators announced the deal on Capitol Hill, Hadley said the proposed legislation satisfied President Bush’s number-one concern. “The president said that his sole standard with respect to Common Article III [of the Geneva Conventions] was going to be whether the CIA would be able to go forward with a program for questioning terrorists,” Hadley said. That program has “saved lives, both here at home, and saved lives on the battlefield.”

During the negotiations, Bush had issued a forceful threat to end the program if Congress did not give him what he wanted. Now, Hadley said, that won’t be an issue. “The program will go forward,” he explained, “and the men and women who are asked to carry out that program will have clarity as to the legal standard, will have clear congressional support, and will have legal protections as we ask them to do this difficult work.”

How did that come about, giving the president what he wanted while still addressing McCain/Graham/Warner’s concerns? The key to the deal was the decision to have Congress define, in U.S. law, what are called “grave breaches” of the Geneva Convention. “We recognized that the president has the authority to interpret treaties,” says the source aligned with McCain/Graham/Warner, “but Congress now has the authority to define ‘grave breaches.’” In doing so, the negotiators enumerated nine offenses that everyone agreed constituted a grave breach of the treaty: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, rape, causing serious bodily injury, and sexual assault or abuse, and taking hostages.

Some are quite clear. Rape is rape, and murder is murder. But what does “cruel or inhuman” treatment mean? There was a lot — a lot — of negotiation about that. For example, the two sides haggled over the meaning of “severe mental pain” versus “serious mental pain.” The senators maintained that “serious” was the more serious term, and they won. What that will mean in practice is not entirely clear, which is probably what both sides intended.

But what is clear is that, after defining grave breaches, Congress gave the administration significant leeway to define non-grave breaches of the Geneva Conventions. “Grave breaches are crimes,” the source says. “Non-grave breaches are something else….We are going to spell out grave breaches, and then it is up to the administration to come up with sanctions for violations that are less than grave breaches.”

That could include many, if not most, of the techniques that the administration has used in the CIA interrogation program. For example, both sides appear to believe that the agreement permits the CIA to continue to use sleep deprivation, cold rooms, and other such techniques. On the other hand, the status of the most notorious of those techniques, waterboarding, is not quite clear. When a reporter asked Hadley whether waterboarding constituted a grave breach under the new agreement, he answered, “We are not going to get into discussions of particular techniques.” A few seconds later, he added, “for purposes of complying with our international obligations under international law, that’s something that the president will clarify by executive order.”

Since we're dealing with people trying to slaughter Americans in their homes and businesses, wouldn't the "don't ask, don't tell" policy the gay lobby and Bill Clinton forced on the military be a better approach?

Ann Coulter, as usual, cuts to the chase:

As Graham explained, he doesn't want procedures used against terrorists at Guantanamo "to become clubs to be used against our people." Actually, clubs would be a step up from videotaped beheadings.

Or as The New York Times wrote in the original weasel talking points earlier this summer: "The Geneva Conventions protect Americans. If this country changes the rules, it's changing the rules for Americans taken prisoner abroad. That is far too high a price to pay so this administration can hang on to its misbegotten policies."

There hasn't been this much railing about the mistreatment of a hostage since Monica Lewinsky was served canapes at the Pentagon City Ritz-Carlton Hotel while being detained by the FBI.

The belief that we can impress the enemy with our magnanimity is an idea that just won't die. It's worse than the idea that paying welfare recipients benefits won't discourage them from working. (Some tiny minority might still seek work.) It's worse than the idea that taxes can be raised endlessly without reducing tax receipts. (As the Laffer Curve illustrates, at some point -- a point this country will never reach -- taxes could theoretically be cut so much that tax revenues would decline.)

But being nice to enemies is an idea that has never worked, no matter how many times liberals make us do it. It didn't work with the Soviet Union, Imperial Japan, Hitler or the North Vietnamese -- enemies notable for being more civilized than the Islamic savages we are at war with today.

By the way, how did the Geneva Conventions work out for McCain at the Hanoi Hilton?

Quite well, actually---the Vietcong continue to erode American combat capability thanks to the sensitivities awakened within McCain during his captivity. The brutal treatment McCain endured does not make him an expert on prisoner detention and interrogation policy---it compromises his objectivity and puts us all at risk as a result. McCain was a hero as a POW, but heroes don't always make the best policy. That's why we didn't listen to Charles Lindbergh's novel theories on the Nazis.

One implication of McCain's infectious naivete on this issue is that terrorists must be accorded Miranda rights.

Is that the message we want to send: commit atrocities against us and we'll treat you like citizens?

Thomas Sowell boils it down:

The issue has been brought to a head by the efforts of Senators John McCain, John Warner, and Lindsey Graham to get us to apply the rules of the Geneva convention to cutthroats who respect no Geneva convention and are not covered by the Geneva convention.

If this was just a case of a handful of headstrong senators, who want us to play by the Marquis of Queensbury rules while we are being kicked in the groin and slashed with knives, that would be bad enough. But the issue of applying the Geneva convention to people who were never covered by the Geneva convention originated in the Supreme Court of the United States.

Article III, Section II of the Constitution gives Congress the power to limit the jurisdiction of federal courts, and Congress has specifically taken away the jurisdiction of the courts in cases involving the detention of illegal combatants, such as terrorists, who are not -- repeat, not -- prisoners of war covered by the Geneva convention.

The Supreme Court ignored that law. Apparently everyone must obey the law except judges. Congress has the power to impeach judges, including Supreme Court justices, but apparently not the guts. Runaway judges are not going to stop until they get stopped.

In short, the clash between Senator McCain, et al., and the President of the United States is more than just another political clash. It is part of a far more general, and ultimately suicidal, confusion and hand-wringing in the face of mortal dangers.

Rather makes you want to vote Vigilis in 2008, doesn't it?