from the Centre for American Progress ….. 

‘For five years after 9/11, the administration failed to work with Congress to develop a system to try detainees. Last week, President Bush finally unveiled legislation for military commissions. "The rationale is clear," Time magazine's Andrew Sullivan writes. "In the week of the fifth anniversary of 9/11 the president wants to change the debate from Iraq, from Iran, from the past and position himself once again as the indispensable protector." With the bill, the administation is "proposing to write into law a two-track system that has existed as a practical matter for some time"; one system that observes the Geneva Convention's ban on "cruel, inhuman or degrading treatment," and one that does not. (Georgetown Law professor Martin Lederman described the move as a "Jeckyll and Hyde routine.") On Sunday's edition of Meet the Press, Vice President Cheney explained why the legislation essentially ignores the Supreme Court's Hamdan decision, which forced the administration to develop a system consistent with Geneva: "I happen to disagree with the Supreme Court. I think the Thomas/Scalia/Alito minority views were the correct ones." It looks as if Congress will toe the administration line. Senate Majority Leader Bill Frist (R-TN) plans to push for a vote "by the end of the month and hopes the memory of the Sept. 11 attacks would help rally lawmakers behind the White House proposal."

Last week, the Pentagon released a revised Army Field Manual that "provides Geneva Convention protections for all detainees and eliminates a secret list of interrogation tactics." The manual bans several controversial techniques, including "forcing prisoners to endure long periods of solitary confinement, using military dogs to threaten prisoners, putting hoods over inmates' heads" and waterboarding. Bush's legislation, however, "would “liberalize the definition of what is torture" by amending the War Crimes Act to "permit use of “hypothermia, threats of violence to the detainee and his family, stress positions, ‘long-time standing,’ prolonged sleep deprivation, and possibly waterboarding." Under the Bush plan, the CIA "will reserve the right to use the tougher tactics," while opening up the possibility the Pentagon later could "revise its own standards to allow the harsher techniques." Army Deputy Chief of Staff for Intelligence John Kimmons warned against legalizing a separate interrogation track. He said, "I am absolutely convinced [that] no good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that. ... And we can't afford to go there."

"A growing number of CIA counterterrorism officers are insuring themselves against possible civil lawsuits," the Washington Post reported yesterday. The reason: "heightened anxiety at the CIA that officers may be vulnerable to accusations they were involved in abuse, torture, human rights violations and other misconduct." Bush's legislation would provide these worried officials with "retroactive immunity from prosecution" if they are accused of using some of the techniques forbidden under the Army Field Manual. The "interrogators who engaged in those practices both in the past and in the future would not face prosecution." In addition, an administration official has said the CIA secret prision program "could continue," but not "in the same manner that it operated before."

Last week, Sens John Warner (R-VA), John McCain (R-AZ), and Lindsey Graham (R-SC) introduced an alternative to the Bush bill that would bar "secret evidence or information obtained from 'cruel, inhuman, or degrading treatment.'" The White House has been working overtime to "win concessions" from the Senators that would prohibit torture victims from seeking damages under the Geneva Conventions, eliminate habeas relief for aliens held outside the United States, and narrow the scope of the War Crimes Act, substituting language about "grave breaches" for the general prohibition on violating Common Article 3. A recent draft of the Senators' legislation suggests these efforts may be succeeding. The White House, however, is pushing for its own concessions: "Yesterday, CIA Director Michael V. Hayden went to Capitol Hill to lobby senators for the administration's version of the bill." Meanwhile, Rep. Duncan Hunter (R-CA) and Sen. Bill Frist (R-TN) are pushing legislation that closely mirrors the administration's bill.

"As soon as Congress acts to authorize these military commissions," Bush said last week, "we will prosecute these men and send a clear message to those who kill Americans: No matter how long it takes, we will find you and bring you to justice." The speech signaled an effort by Bush to reframe the debate over military commissions as a false choice "between breaching the Geneva conventions or backing Khalid Sheikh Mohammed." "It’s territory he knows and feels secure on," Andrew Sullivan writes, "goading the opposition as appeasers and terror lovers." Last week, it looked as if conservatives would be split on the issue, making it less effective as a political cudgel. But Bush's "round of speeches on national security" has made the right wing "more wary of bucking the White House."’