Clash of visions over CIA interrogations

In its proposal to Congress, the Bush administration is seeking a clear statement from lawmakers on what would constitute a breach of Common Article 3. In addition, the president is asking Congress to grant retroactive immunity to those involved in the CIA program.

At press time, there were conflicting reports about the status of the negotiations and how a clear statement might be expressed in legislation.

Some observers are skeptical that a deal can be reached.

"I don't believe there is a principled way to compromise on the meaning of Common Article 3," says Elisa Massimino of the advocacy group Human Rights First, who has been closely following the negotiations.

The administration had sought to amend the US War Crimes Act to help insulate the CIA program from legal liability in American courts. But the heart of the administration's approach was to ask Congress to adopt the same terms of compliance for Common Article 3 as are spelled out in the December 2005 Detainee Treatment Act.

The DTA says that no one in US custody anywhere in the world "shall be subject to cruel, inhuman, or degrading treatment or punishment."

Administration officials prefer the DTA wording over Common Article 3 wording because they say it will not be subject to varying interpretations.

Critics warn that the administration is opening a Pandora's box.

"This is extremely dangerous terrain the president has walked upon now," says David Scheffer, director of the Center for International Human Rights at Northwestern University School of Law and former US ambassador at large for war crimes issues during the Clinton administration.

Professor Scheffer says Common Article 3 was carefully drafted to deter broad categories of potential human rights abuses. "If we take this step to narrowly define Common Article 3 crimes, it will be open season for other governments to do exactly the same thing," he says. And that, Scheffer adds, would put US troops at substantial risk whenever they serve overseas.

"Once you narrowly define what the general prohibitions in Common Article 3 cover, whatever you do not prohibit in your detailed list of prohibited activity will be assumed to be appropriate and legal," he says. "It was never the intention of the drafters of the Geneva Conventions and of Common Article 3 to be so specific in defining these crimes. That would create an enormous opportunity to gut the convention itself."

Other analysts say the war on terror poses unique challenges not directly addressed in international accords governing wars between nation-states. Presidents have the power to interpret international treaties, they add.

"A state should have a wide degree of flexibility to determine what constitutes these standards," says James Carafano of the Heritage Foundation. The president must have wide latitude to defend the nation in wartime, he adds.

"To tell the administration what interrogation techniques it can or can't use would be like Congress trying to tell the military which hills they have to take in a war," Mr. Carafano says. "This is encroaching on the power of the executive."

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