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White House, Senators Near Pact on Interrogation Rules
President Would Have a Voice in How Detainees Are Questioned

By R. Jeffrey Smith and Charles Babington
Washington Post Staff Writers
Friday, September 22, 2006

The White House and dissident Senate Republicans reached a tentative accord yesterday on legislation that President Bush said would provide for continued tough interrogations of terrorism suspects by the CIA at secret detention sites.

The accord, which includes a plan for future military trials of alleged terrorists, also spells out rules for the use of classified evidence as well as information obtained through coercion of some detainees.

While the deal is subject to further discussion with House Republican leaders, it resolved the most contentious issues in the Bush administration's high-profile drive to gain congressional backing for its detainee policies before Congress adjourns next week. It also could help settle an intraparty fracas that worried GOP leaders in the run-up to the November elections.

Both sides declared that they had achieved their aims. Bush hailed the accord in a brief televised appearance from Orlando. He said the deal preserved "the CIA program to question the world's most dangerous terrorists and to get their secrets." CIA Director Michael V. Hayden told the agency in a statement that "if this language becomes law, the Congress will have given us the clarity and the support that we need to move forward with a detention and interrogation program."

Sen. John McCain (R-Ariz.), a prisoner during the Vietnam War who led the Senate rebellion against the administration's proposals, said, "The agreement that we've entered into gives the president the tools that he needs to continue to fight the war on terror and bring these evil people to justice." But he added: "There is no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved."

On the key issue of detainee treatment that had caused the impasse between the White House and the dissident Republicans, the two sides agreed on a list of specified crimes that could provoke prosecution of CIA interrogators and others. They also agreed that past violations of the Geneva Conventions, an international treaty barring degrading and humiliating treatment of detainees, would not result in criminal or civil legal action.

The White House, for its part, yielded in its demand to adopt, with congressional approval, a restricted definition of its obligations under Common Article 3 of the Geneva Conventions. That article requires humane treatment of detainees and bars "violence to life and person," such as death and mutilation, as well as cruel treatment and "outrages upon personal dignity."

The compromise language gives the president a dominant -- but not exclusive -- role in deciding which interrogation methods are permitted by that provision of the treaty. It also prohibits detainees from using the Geneva Conventions to challenge their imprisonment or seek civil damages for mistreatment, as the administration sought.

Subsidiary legal disputes will probably be hammered out in coming days, Sen. Majority Leader Bill Frist (R-Tenn.) said at a crowded news conference outside his office.

Sen. Lindsey O. Graham (R-S.C.), a key McCain ally, said that "we struck a great balance" by agreeing that in future military trials, known as "commissions," classified materials must be provided to defendants in summary or redacted form. The administration had sought the right to use such evidence without disclosing it to defendants in any form, but Graham said the legislation would instead let defendants "confront the evidence."

The administration envisions using the new rules in military trials that may involve some of the 14 key terrorism suspects whom Bush this month ordered transferred from secret CIA prisons to the detention facility in Guantanamo Bay, Cuba.

Yesterday's final marathon talks occurred in Vice President Cheney's little-known office on the second floor of the Dirksen Senate Office Building. McCain, Graham and Senate Armed Services Committee Chairman John W. Warner (R-Va.), plus Hadley and Steven G. Bradbury, acting head of the Justice Department's Office of Legal Counsel, met almost continuously from 9:30 a.m. to 2 p.m., the sources said, and then moved to Frist's office around 3 p.m. to announce their breakthrough.

The White House has pressed for the legislation partly to obtain immunity from prosecution for government officials, including CIA interrogators, for past acts that degraded and humiliated detainees. Its impetus was a Supreme Court ruling in June, in Hamdan v. Rumsfeld , that declared some aspects of the administration's past interrogation and trial policies illegal.

Officials' anxieties were provoked by a 10-year-old U.S. law, the War Crimes Act, that makes violations of the Geneva Conventions' prohibitions on degrading and humiliating detainees, as well as actions that amount to "outrages upon personal dignity," subject to felony prosecution. Senior military officials have told Congress those prohibitions were violated.

The agreement coalesced around two crucial issues: the GOP senators' insistence that Bush not be allowed to appear to reinterpret the meaning of the Geneva Conventions, and the White House's insistence that CIA officers 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 would never 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 a crime under the War Crimes Act. The administration wanted the term to describe techniques resulting in "severe" physical or mental pain, but the senators insisted on the word "serious."

Negotiations then turned to the amount of time that a detainee's suffering must last before the treatment amounts to a war crime. Administration officials preferred designating "prolonged" mental or physical symptoms, while the senators wanted something milder. They settled on "serious and non-transitory mental harm, which need not be prolonged."

These definitions appear in a section of the legislation that specifically lists "grave breaches" of the Geneva Conventions that might bring criminal penalties.

For lesser offenses barred by the Geneva Conventions -- those lying between cruelty and minor abuse, putting them at the heart of the intraparty dispute -- the draft legislation would give the president explicit authority to interpret "the meaning and application" of the relevant provisions in Common Article 3. It also requires that such interpretations be considered as "authoritative" as other U.S. regulations.

But the language also requires that such interpretations be published, rather than described in secret to a restricted number of lawmakers. That provision was demanded by the dissident lawmakers, who resented the administration's past efforts to curtail the number of members who were told of its policies. The provision also affirms that Congress and the judiciary can play their customary roles in reviewing the interpretations, a statement that Senate sources say the White House vigorously resisted.

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 that their concerns were addressed. "We kind of take the scenic route, but we get there," the official said.

Democrats sounded a cautious note about the Republican accord, calling attention to the past Republican division rather than taking a position on the compromise.

Staff writer Peter Baker contributed to this report.

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