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Adherence to Geneva Conventions at Heart of US Detainee Compromise


A key provision of international law was at the heart of the now-resolved dispute between the Bush administration and a few Senators from his Republican party over how terrorism suspects should be treated and put on trial.

Both sides claimed victory in the legislative compromise over the treatment of terror detainees.

President Bush said the agreement with key Republican senators would allow the Central Intelligence Agency to continue its aggressive questioning of suspected terrorists in U.S. custody.

"I'm pleased to say that this agreement preserves the most, single most potent tool we have in protecting America and foiling terrorist attacks, and that is the CIA program to question the world's most dangerous terrorists, and to get their secrets. The measure also creates military commissions that will bring these ruthless killers to justice," he said.

On the other side, the handful of Republican senators who wanted to moderate the administration's approach to dealing with terror suspects also claimed victory.

Senator John McCain, a Republican from Arizona, told NBC's Today program that it is important that U.S. treatment of suspected terrorists conform with the protections given to prisoners of war under the Geneva Conventions. "We got what we wanted and that is the preservation of the Geneva Conventions. There will be no more torture. There will be no more mistreatment of prisoners that would violate standards of conduct that we would expect of people, who work for the United States of America," he said.

Bush administration officials had wanted to reinterpret the Geneva Conventions ban on what are called outrages upon personal dignity, a phrase White House officials felt was too vague.

But McCain, a former prisoner of war who was tortured, and other key Republicans argued that any attempt to weaken the language in the conventions would further damage the U.S. image abroad.

The agreement on detainee treatment between the president and the Republican senators comes in the wake of a decision in June by the U.S. Supreme Court.

By a vote of five-to-three, the high court ruled that the terror detainees being held by the Bush administration are protected by the Geneva Conventions.

The Supreme Court also rejected the Bush administration's plans to try some of the suspects using military commissions that limited the rights of defendants to see the evidence presented against them.

The controversy over how to treat suspected terrorists has also sparked a debate among legal analysts in the United States.

David Rivkin, who has worked on legal issues in previous Republican administrations, supports the Bush administration's view that al-Qaida suspects should be seen as unlawful enemy combatants, and, therefore, not entitled to the same protections afforded to prisoners-of-war in previous international conflicts. "There should be some differences between the way you try lawful combatants, who have committed crimes on an individual basis and became war criminals, and unlawful combatants, who are always wrong, who are always, sorry to use the word, evil, always evil, or a danger to humanity," he said.

But Bush administration critics argue that it is important that the United States live up to its obligations as a signatory to the Geneva Conventions.

"Due (legal) process is a matter that we are committed to, without respect to questions of honor. The only honor at stake when you are talking about what kind of process is due is our own honor as a nation," said Eugene Fidell, an expert on military justice, who recently took part in a discussion on the treatment of terror detainees sponsored by the American Constitution Society in Washington.

Under the compromise agreement that still has to be approved by Congress, the U.S. obligations under the Geneva Conventions are preserved. But the president also has some leeway in deciding which interrogation methods are permissible under the conventions.

The agreement also prevents detainees from using the Geneva Conventions to challenge their detention, or sue for civil damages, based on alleged mistreatment by interrogators.

Both sides must still work out a compromise on how to use classified information that might be used against suspected terrorists in a military tribunal.

Even if approved by Congress, the compromise measure would still be subject to legal challenge within the U.S. court system, including the Supreme Court, if appeals should go that far.

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