Rolling out former British Prime Minister Margaret Thatcher, who famously urged George H. W. Bush not to "go wobbly" ahead of the first Gulf War, was a particular bit of political hardball by the President's Hill allies as they try to stiffen spines in their caucus. And the stakes are high. The November midterm elections may hinge on national security, and McCain and company are depriving their party of its best weapon a vote that makes Democrats look weak. More important, the White House claims, is that McCain and company could outlaw methods of gaining intelligence that have been effective in preventing attacks against the U.S.
But some Senators and legal experts see another reason for the heightened concern at the White House. On paper, at least, White House officials and CIA officers could be vulnerable to prosecution for past or future use of illegal methods of interrogation unless Congress changes the law.
The threat of prosecution comes not from some left-wing activists or even the House Democrats, but from the highest court in the country. In his concurring opinion in the Hamdan v. Rumsfeld case last summer, Justice Anthony Kennedy said that the administration had to live within the Geneva Conventions. "Violations [of the Geneva Conventions] are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel," he wrote. And for emphasis, Kennedy pointed to paragraph 2441 of the U.S. code, which lays out the penalties for those violations, including life imprisonment and the death penalty.
It's hard to see how the methods the Administration authorized for use against some of their detainees could not have violated the Geneva conventions. Common article 3 of the conventions prevents any "outrages on the personal dignity" of detainees. Among the highlights of the Administration's approved techniques: waterboarding, wherein a prisoner is made to believe he is drowning; intimidation using dogs; stripping of prisoners; and so on.
When the key swing vote on the Supreme Court goes out of his way to say you are breaking the law, and enumerates the penalties you face, you pay attention. Says Tom Malinowski, of Human Rights Watch, who has advised Senators and their staffs on the matter, "The White House now knows they were operating under pretty bad legal advice from the Justice Department," which told them Bush had near-limitless authority when acting as commander-in-chief during times of war. "They're worried about some rogue prosecutor in the future who might hold specific individuals responsible," Malinowski says. Privately, some senior GOP senators say they believe that is what is motivating the White House resistance to the McCain/Warner/Graham bill.
Maybe. But just how much danger is the White House really in? It is rare for political leaders to be prosecuted for genuine attempts to protect the public, and few question the motives behind the extreme interrogation methods, even if they strongly disagree with them. More to the point, Graham, Warner and McCain have larded their bill with protections from prosecution for anything but "grave breaches" of the conventions, which they believe should be adequate to protect the White House and CIA.
But just because the Administration's extreme interrogation techniques wouldn't be punishable as crimes doesn't mean they would be authorized to use them either. And that, say several people involved in the debate, is what the Administration is really after. In his speech announcing the closure of the program that used most of the controversial methods last week, Bush said he wanted to keep open the possibility of reopening it in the future. "They want the authority to continue the program if they capture other guys," says Malinowski.
As he went into the policy lunch Tuesday, McCain, who was tortured in Vietnam, said "My position will not change" on the extreme methods. And Graham is adamant that the interrogation program is "a thing of the past." One or both of the competing bills may come to the floor of the Senate as early as the end of this week. For now, at least, it appears it will take more than the Iron Lady to compel the Administration opponents to back down.