Cheney, Senators Discuss Detainees

By Charles Babington
Washington Post Staff Writer
Wednesday, September 13, 2006

Vice President Cheney urged Republican senators yesterday not to be too restrictive in setting legal limits on CIA interrogations of enemy combatants, the largest remaining barrier to an agreement between Congress and the White House on legislation that would also set new rules for special military trials for terrorist suspects.

Cheney and White House Chief of Staff Joshua B. Bolten met for an hour with GOP senators in hopes of narrowing their differences over proposed legislation governing the treatment, questioning and prosecution of suspected terrorists and enemy combatants, such as those held at the U.S. military prison at Guantanamo Bay, Cuba.

Afterward, key senators said they had made progress on several fronts, including the use of secret information against defendants and guidelines for handling allegedly coerced statements. The biggest sticking point, they said, was how narrowly to define practices that might subject CIA interrogators or others to charges of committing war crimes.

That "is still the area we are farthest apart on," Sen. John McCain (R-Ariz.) told reporters.

Sen. Lindsey O. Graham (R-S.C.) said he and others are pressing the administration to accept a list of practices that would be considered illegal, bringing greater specificity to current language that bars "grave breaches" of the Geneva Conventions, the treaties that govern the treatment of prisoners of war.

"We are going to define, in the war crimes section [of the U.S. Code], what a grave breach would be, just like any other criminal statute," said Graham, a former military lawyer.

He declined to detail the proposals but said he is "optimistic" an agreement can be reached.

Common Article 3 of the Geneva Conventions prohibits "outrages upon personal dignity, in particular, humiliating and degrading treatment" of detainees. The Bush administration had maintained that those protections did not apply to prisoners captured in the U.S. counterterrorism campaign, but allies and human rights groups had criticized some U.S. interrogation practices, including simulated drowning.

In June, the Supreme Court ruled that the administration must abide by the Geneva Conventions in treatment of those prisoners and declared illegal its plan to try them before military "commissions." The White House responded by submitting new proposals to Congress that are now being negotiated with key Republicans.

The talks concern both the rules for trials of the detainees and language submitted by the administration that would, in effect, set the rules for CIA interrogations of future detainees.

President Bush has urged lawmakers to give the executive branch substantial leeway in interrogating and trying detainees. But GOP senators including McCain, Graham and John W. Warner (Va.) have resisted on several fronts. They balked, for instance, at a White House bid to allow the use of classified information that is not shared with defendants.

Graham said yesterday that negotiators are nearing an agreement that would allow the defendant to know the essence of the allegations against him, but not the person or techniques that produced them.

"I'm trying to protect the prosecution from having to disclose sources and methods that will come from defense requests that are basically overreaching," Graham told reporters.

Similarly, he said, senators and the White House may reach an agreement on how to handle allegedly coerced statements. The proposal would allow only those statements that a military judge decides were made voluntarily.

Under U.S. law, war crimes include "a grave breach" of the Geneva Conventions. The conventions describe grave breaches as "willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health . . . or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."

Administration officials and others have said the language is so vague that it could unfairly subject government interrogators to charges of criminality. Graham said he has proposed taking the Geneva Conventions' list of grave breaches, adding "a few more," and directing that interrogation programs be built around the guidelines. He declined to say what the additions might be.

Congress should define the U.S. War Crimes Act of 1996, Graham said, "in a way consistent with our treaty obligations, which would make 'grave breaches' a crime." Under this scenario, he said, interrogators would know they could not engage in "serious criminal physical misconduct, inhumane treatment of a serious nature."

White House spokeswoman Dana M. Perino said: "We're having an ongoing conversation with the Congress on all of the issues, and we're committed to reaching a resolution so that they can take the next legislative step."

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