September 20, 2006

Hopeful News: Frist Still Expects Interrogation, Wiretap Bills

The bill to put Congress and the White House on the same page anent interrogating high-value terrorist targets, such as Khalid Sheikh Mohammed (hence KSM), seemed on life support just yesterday: the four Republican turncoats on the Armed Services Committee -- John McCain (AZ, 80%), Lindsay Graham (NC, 96%), Susan Collins (ME, 32%), and even Chairman John Warner (VA, 88%) -- had rejected the president's plan the first time, and they reportedly rejected Bush's revised plan.

Similarly, a bill to put Congress behind the NSA al-Qaeda intercept program was nearly derailed yesterday when Rep. Heather Wilson (R-NM, 75%) proposed the main "wiretapping" bill for the House... and in her version, the president would only be able to order intercepts without a warrant after a devastating attack had occurred! She didn't quite seem to get the point, which is to prevent such attacks from occurring, not develop a legal case to prosecute, post facto, those responsible.

But today, things look perhaps just a little brighter. We're not at the dawn yet, but the East is brightening -- if Majority Leader Bill Frist (TN, 92%) can be believed:

President Bush's embattled anti-terrorism agenda got a boost Wednesday when a wiretap bill was revised and a Senate Republican leader said he was hopeful a deal was near on treatment of detainees.

But prospects for the two critical pieces of legislation remained unclear; Congress is speeding toward a recess next week as Republicans fight to retain majority control in the midterm elections.

First, Heather Wilson has now rewritten her bill to allow for such communications intercepts when the president believes an attack is imminent, not only after it's already occurred. Frankly, I still consider that a second-best: I believe the president has the inherent authority to order such warrantless intercepts of foreign intelligence with or without a finding of imminence of attack; he only has to find that national security is at stake.

But it's a heck of a lot better now than yesterday! And the "quo" she extracted for this "quid" is very positive in pointing the way forward:

Wilson's bill initially would have given legal status to Bush's domestic surveillance program only after an attack. Instead, her bill now would grant the administration's plea to allow wiretapping against Americans without warrants when it is believed a terrorist attack is "imminent."

But that concession carried a price for the president, according to a draft.

Under the measure, the administration would be required to share more details of the nature of the threat with the House and Senate leaders and the chairmen of both intelligence committees, who then would decide without administration input which lawmakers would receive the classified information.

"Excesses are best prevented when intelligence activities are operated within a framework that controls government power by using checks and balances among the three branches of government," Wilson, R-N.M., said in a statement.

Great Scott, is that all it takes? The critics in Congress will be satisfied with the "wiretapping" if a few more of them get to hear about it, so they can brag to their buddies? Of course that increases the risk that somebody will blab and the terrorists will figure it out; but that slim chance is to be weighed against not being able to intercept at all. I would happily trade congressional approval of the communications intercepts for that small increase in the number of those who know about each incident.

This may even help find compromise on the interrogations issue I discuss below. None of the turncoat Republicans is on the Senate Select Committee on Intelligence; maybe all it will take to reel them in is to commit to brief the chair and ranking member of the Armed Services Committee at the same time as the Intelligence chair and ranking are briefed, and then allow both chairs and both ranking members to brief whomever they choose.

It might be something as stupid and childish as three grumpy, old men (and one grumpy, old woman) having a fit of pique that they weren't "in the loop."

So much is my own speculation. The hopeful news in the AP story about the interrogations policy is more inchoate; it comprises the majority leader offering his prediction:

Despite the stalemate, Senate Republican Leader Bill Frist sought to reassure the GOP troops that a deal still was possible.

" I am hopeful that very soon agreement can be reached with the president and with the majority of Republicans," Frist, R-Ky., said in a statement. "But we need to do it in a way that were not sharing classified information with those terrorists who clearly will pass it on to others around the world to be used against us."

Take it for what it is: a prediction, not necessarily inside information about how senators will vote.

Here is the interrogation dilemma on a nutshell:

• The Supreme Court, in Hamdan, held that we must follow Common Article 3 of the Geneva Conventions, to which we are signatories;
• Common Article 3 bans a number of offenses against civilians under enemy control (including captured terrorists); among those offenses are:
  • Cruel treatment
  • Torture
  • Outrages upon personal dignity
  • Humiliating and degrading treatment

  At their most restrictive, these prohibitions could stop CIA interrogators from asking any questions of KSM at all after he refused to answer;

• In addition, the article requires that if such civilians are tried for offenses, it must be by "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." At its most restrictive, this rule would allow KSM to see all classified information in any way related to his trial -- including sources, means, and methods. This could be passed along to al-Qaeda and other terrorist groups to hone their attacks and make them less detectable, hence deadlier. The danger of this would likely lead to the charges being dropped... and it's an open question whether we could continue to hold him under those circumstances; we might have to let him go....
• If enforcement of the Geneva Conventions is going to become a part of the police power of the United States, as the Court ordered, then all of these terms must be legally defined in a way that a court or military tribunal can pass judgment on members of the U.S. armed services and on civilians (such as CIA interrogators) accused of violating them; similarly, the interrogators themselves must know what they can and cannot do during an interrogation -- without worrying that a court will come along later and second-guess everything (from the comfort of their chambers), with the interrogator possibly finding himself up on criminal charges or being sued.
• However, these terms did not arise from American law and their legal meanings are not inherently obvious (such as a prohibition on "cruel and unusual punishment" would be, since that's well defined by caselaw);
• Thus, the terms must be defined by law now, in order to implement the Court's Hamdan decision, or our personnel will be under constant threat of criminal prosecution or civil litigation, merely for doing their jobs.

Curiously, as others have reported (John on Power Line, e.g.), all these terms were already defined in law: they were defined by the Detainee Treatment Act of 2004... the specific definitions in that act authored by none other than Sen. John McCain!

So McCain already defined these terms in a bill, and President Bush signed McCain's bill into law -- and now relies upon that exact definition (by name) in his bill to clarify detainee treatment following Hamdan... and McCain and three other Democratic senators say that's not good enough. We have to treat the terrorists even better than McCain himself wanted to treat them two years ago.

But Bill Frist still thinks he sees movement on both sides that could lead to an acceptable compromise. Most likely, nobody at AP bothered asking him what cause he had to say that. They probably weren't even listening; it's pro-forma to get a quote from the majority leader... if he happens to be a Republican, the journalist holds his nose and does it anyway. But he doesn't have to like it; and he doesn't have to listen to the reply.

So let's keep our collective digits crossed that both these two go through... along with the House-enacted bill that requires voters to show picture-proof of citizenship before they can vote in any federal election, regardless of any state laws to the contrary -- though I suspect this goes nowhere in the Senate; it's off-topic, but I thought I'd throw it in as something to watch as it goes through the sausage mill.

Happy days aren't yet here again, but at least the corners of my mouth are beginning to twitch upward.

Hatched by Dafydd on this day, September 20, 2006, at the time of 6:19 PM

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