I've spent too long this afternoon going over the Senate's "compromise" on torture and detainee treatment [PDF]. Firstly, as the New York Times points out, this isn't a "compromise", but a surrender - the White House got everything they wanted, with the "rebel" Republican Senators gaining concessions only on the use of secret evidence. Secondly, the bill raises significant constitutional issues in assigning to the President "authority for the United States to interpret the meaning and application of the Geneva Conventions" (a judicial function), and in barring the use of any "foreign or international sources of law" in interpreting the US War Crimes Act (a violation of the separation of powers which, if permitted, would allow Congress to pass laws forbidding reliance on certain legal precedents. Roe vs Wade, or United States vs Nixon, say...) Thirdly, the bill has this lovely bit:
(2) PROHIBITION ON GRAVE BREACHES. The provisions in section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in Common Article 3 in the context of an armed conflict not of an international character.
Really? Let's look at that obligation, shall we?
The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article...
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.
The amendments to the War Crimes Act define many of these crimes, though in deliberately vague terms for inhuman treatment (and remember that the US government disagrees with the entire world in thinking that waterboarding - a medieval torture technique used by the Spanish Inquisition - is neither torture not cruel and inhumane) . But guess which one isn't included? That's right - the crime of denying a fair and regular trial. Which given that the rules for trials elsewhere in the bill (which allow hearsay evidence and coerced statements) constitute a clear breach of those standards, and of the "judicial guarantees... recognized as indispensable by civilized peoples" demanded by Common Article 3, would seem to be a significant and deliberate omission. Interestingly, the draft bill also completely ignores the war crime of ordering grave breaches to be committed (I wonder why that is?). The US government may claim that this bill "fully satisf[ies]" the US's obligations under international law - but saying it doesn't make it so.