[JURIST] Senior US Senate Republicans reached an agreement on military commissions legislation [JURIST news archive] with the White House Thursday that would make the President the sole arbiter of the meaning of the Geneva Conventions [ICRC materials] for the United States and would bar litigants such as detainees from invoking the Conventions in habeas or civil actions in the federal courts. Language [text, PDF] agreed upon under the intra-GOP deal would explicitly recognize the President's authority "as provided by the Constitution and by this section [of the bill]," to "interpret the meaning and application of the Geneva Conventions" for the United States and would prohibit any person from invoking "the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories."

The agreed text does, however, set out a series of specified instances of prohibited "grave breaches" outside of presidential interpretation deemed to fall under Common Article 3 [text] of the Conventions and intended as substitutes for or "clarifications" of the Article's own broad bans on "cruel treatment and torture", "outrages upon personal dignity" and so on. These will now be put through as amendments to the referential language of the existing federal War Crimes Act [text; JURIST report]. To entrench them and provide a further measure of protection from war crimes liability for US interrogators the agreed text further declares that "No foreign or international sources of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated…". A residual prohibition against "cruel, inhuman or degrading treatment or punishment" is explicitly made subject to interpretation under the Fifth, Eighth, and Fourteenth Amendments to the US Constitution and US reservations [text] to the UN Convention Against Torture. Other language [text, PDF] also provides that classified evidence can be used against charged detainees in military commission trials, but that a summary of that evidence must be provided to defendants.

Commenting on the deal, Senator John McCain declared that "The agreement that we have entered into gives the president the tools that he needs to continue to fight the war on terror and bring these evil people to justice", adding "there is no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved." In a statement [text] from the White House late Thursday President Bush said:

this agreement preserves the most single — most potent tool we have in protecting America and foiling terrorist attacks, and that is the CIA program to question the world's most dangerous terrorists and to get their secrets.

The measure also creates military commissions that will bring these ruthless killers to justice. In short, the agreement clears the way to do what the American people expect us to do, to capture terrorists, to detain terrorists, to question terrorists, and then to try them. I hope the Congress will send me legislation before it wraps up their business next week.