When "compromise" is no compromise at all...

With both sides claiming victory yesterday in the negotiations between the White House and McCain, it was impossible to work out which of them had actually blinked.

On further reading it's becoming obvious that the truth is actually more complex, and that they appear to have agreed on a compromise that is heavily reliant on its ambiguity. That is why both sides have been able to say they were victorious. The compromise appears to mean different things to different people.

The first thing I have noticed is that McCain et al appear to have worked to make the program legal under existing American law, rather than under the Geneva Conventions, with interpretation of Geneva being left to the discretion of the President:

(3) INTERPRETATION BY THE PRESIDENT.—(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

Now, whilst the compromise goes on to identify "grave breaches": "Torture, Cruel or Inhuman Treatment, Performing Biological experiments, Murder, Mutilation or Maiming, Intentionally Causing Serious Bodily Injury, Rape, Sexual Assault or Abuse and Taking Hostages"; it, more importantly, does not define what constitutes a "non-grave breach" leaving such a definition for the President to define in executive orders.

(B) The President shall issue such interpretations by Executive Order published in the Federal Register, and such orders shall be authoritative (as to non-grave breach provisions) as a matter of United States law, in the same manner as other administrative regulations.

It is here that the ambiguity lies that allows both sides to claim they have won the concession that they sought. McCain and others will say that Bush will now have to be transparent about what he defines as a "non-grave breach". The theory goes that if Bush wants to torture he will have to define and specify what acts are allowed and which are prohibited.

I can see the McCain logic and further see where he thinks he has gained victory, although I am afraid - unless I am very much mistaken - that I think it is here that he has given this administration far too much rope.

Anyone who witnessed Bush's recent Press Conference in the Rose Garden will have noticed the amount of hoops that Bush is prepared to jump through to avoid ever saying what he actually means when he asks for "robust" interrogation or whatever other euphemism he is currently employing to indicate torture. The mistake McCain has made, as far as I can see, is to take the Bush camp at their word when they claimed they sought "clarification" of Article 3.

They do not and never have sought "clarification", they seek obfuscation, and that is the opportunity that McCain has offered them.

Bush will now issue a serious of "clarifications" that do anything but clarify. Torture will now be admitted but it just won't be called torture.

Bush is adamant that his program will now go ahead:

"I had a single test for the pending legislation, and that's this: Would the CIA operators tell me whether they could go forward with the program, that is a program to question detainees to be able to get information to protect the American people. 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."

Remember, he said this would only go ahead if he was allowed to continue using techniques that the entire civilised world recognises as torture.

Indeed, it could be argued that McCain and the others have strengthened Bush's ability to use torture as official policy by placing the ability to define torture in his own hands rather making him conform to the definitions long accepted under international law.

However, this is the ambiguous part of "the compromise", the non-ambiguous parts are actually worse:

(a) IN GENERAL.—No person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories.

Having been defeated several times in the courts by the invoking of Geneva, Bush now seeks to remove the invocation of Geneva from the courts jurisdiction.

And that is but the tip of the iceberg. As Glenn Greenwald points out over at The War Room:

The McCain-Graham-Warner proposal concerning military commissions was, from the beginning, an awful bill that was quite radical in its own right. As but one example, the senators' proposal strips all detainees in American custody of the right of habeas corpus, meaning that detainees are denied the right to challenge in court either the validity of their detention (e.g., by proving that they are not terrorists) or the legality of their treatment (e.g., by demonstrating that they have been tortured).

This denial-of-judicial-access provision means, as Yale law professor Jack Balkin explained, that the military can imprison, and torture, a detainee forever without ever bringing the detainee before a military commission, and the detainee has no means at all to challenge his detention or the treatment to which he is subjected. It is difficult to imagine a more radical power to vest in our government than the power to detain people (including legal residents in the U.S.) forever, and to torture them, while expressly denying a detainee all legal recourse. Yet that is exactly what the McCain-Graham-Warner proposal (and the White House's proposal) provides.

This was always a terrible bill and the "compromise" does not lessen it's awfulness.

The "compromise" has allowed both sides to claim victory, but the real loser will be the American public if this terrible bill is ever allowed to become enshrined in American law.

Since World War Two the rest of the planet have been content to believe in American exceptionalism, the belief that America - despite her frequent mistakes - is basically a force for good in the world and that exceptions must be made whenever she steps out of line simply because of the size of the task she has set herself.

It will be impossible for the rest of the planet to continue to view north Americans with such benevolence if she awards herself such astonishing powers free from the constraining influence of any courts. Indeed, any compromise that has ever been won from this administration has only been achieved by the Supreme Court setting down limits.

The only good news in all this grimness is that this bill is not yet law. The Democrats must now step up to the plate and explain to the American people why this law is such a bad one and set out their reasons for opposing it.

They have been content up until now to let McCain and his chums do their fighting for them. McCain, wittingly or unwittingly, has capitulated.

History will not judge kindly anyone, Republican or Democrat, who allows America's value system to be compromised in the way that this dreadful bill does.

When a nation finds itself under attack, that is the time to hold on to the values that have served you well, it is not the time to abandon them. And that is what this bill does.

Tags: Bush, McCain, Torture, Article 3, Geneva, Conventions, Compromise