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How bad can it get?


Urban journal

I'm beginning to feel like we're all on a runaway train, hurtling toward disaster.

The latest documentation of how bad things are: a report from the US intelligence community --- the intelligence community --- saying that our war in Iraq has increased the terrorism threat. The response from the White House and Republican leader in Congress: We're safer. Republicans are strong. Democrats are wimps.

And in the midst of this little show, the Senate is preparing to approve a so-called compromise on prisoner torture, interrogation, and trials that, best I can tell, gives the Bush administration everything it wanted. There was a brief sense of hope when three leading Republican senators dug in their heels, but that's all gone.

The Great Compromise was announced on Thursday. By Friday, reporters and editorial writers in the national press had sorted through the 94-page deal and were laying out the bad news:

"The abuse can continue," as the Washington Post's editorial put it.

Here's what seems clear:

• The bill doesn't give the president the authority to interpret the Geneva Conventions in the case of the most serious mistreatment of prisoners --- but it does give him plenty of latitude to approve some of the very techniques that have been raising concern. The compromise bans "grave breaches" of the Geneva Conventions and lists nine specific acts. Those include murder, rape, hostage taking, and torture. But the definition of torture continues to be in dispute. And the compromise lets the president determine, through an executive order, which interrogation techniques aren't serious enough to be banned.

Senator John McCain, one of the three Republicans who were fighting the president, said he's sure that the agreement bans one of the most controversial techniques, waterboarding, which makes prisoners believe they're drowning. But when reporters asked National Security Adviser Stephen Hadley whether waterboarding could still be used under the terms of the compromise, his answer, according to Byron York of the conservative National Review, was: "We are not going to get into discussions of particular techniques."

And then he added, according to York: "for purposes of complying with our international obligations under international law, that's something that the president will clarify by executive order." The Decider will decide.

• The compromise permits prosecutors to use statements that have been made under coercion --- including, the New York Times' Adam Liptak reported, statements that were obtained under torture that the compromise now purports to ban.

• The compromise permits the use of hearsay evidence.

• Most prisoners at Guantanamo will never have a chance to challenge their detention. Hundreds of people who insist they have no ties to terrorism have been held for years at Guantanamo, without trial, with no charges placed against them. That will continue.

"Innocent detainees could be locked up forever," says an analysis by Human Rights Watch, "without ever having a chance to have their case reviewed by an independent court. And victims of the very abusive practices that the legislation outlaws would be forever precluded from challenging --- and bringing to light --- those abuses. Courts would have no power to stop even ongoing torture."

• The compromise protects people who have already violated US law concerning the treatment of prisoners --- including not only CIA interrogators but also, presumably, Bush administration officials.

• It "allows the president to declare any foreigner, anywhere, an 'illegal enemy combatant,'" according to a New York Times analysis, "using a dangerously broad definition, and detain him without any trial."

Up in the air (meaning that it's likely that the president will get his way): Whether secret evidence --- withheld from the accused --- can be introduced in terrorism trials. In the compromise, the Bush administration seemed to be giving up that demand. But, said a New York Times editorial, less than an hour after the compromise was announced, "the White House was already laying a path to wiggle out of its one real concession."

The House of Representatives, like the full Senate, has to accept the compromise. And according to the Times editorial, National Security Adviser Stephen Hadley unveiled the administration's escape plan. Representative Duncan Hunter, chair of the House Armed Services Committee, will push for permitting secret evidence in the trials.

So will secret evidence continue to be used? "The answer is: yes," wrote the National Review's Bryon York. Hadley, wrote York, told reporters that the compromise "makes sure that no sensitive intelligence will have to be shared with terrorists or their lawyers."

While the agreement is portrayed as a compromise, then, clearly the president won. Saturday's Wall Street Journal editorial carried the headline "An Antiterror Victory."

"Aggressive CIA interrogations" will continue, the Journal said. "In the end, the Senators came most of the way toward the White House position."

And Byron York suggested that the dispute hadn't been "quite as fundamental as the hype suggested."

"The Republican 'dissenters' never wanted to cripple the CIA's interrogation program," wrote York. "Rather, they wanted to work out a way to make most of the program legal using existing American law, not the Geneva Convention. And in that, they appear to have succeeded."