The end of habeas corpus and the official sanction of less than "grave breaches" of the Geneva Convention

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New legislation on the treatment of terror suspects is now halfway to President Bush's desk.

Largely along party lines, the House passed a bill (H.R.6166) yesterday which would give both the president and government interrogators greater leeway in their handling of suspected terrorists. The passage follows weeks of negotiations (mostly between GOP senators and the Bush Administration) concerning the rights of detainees in the U.S. War on Terror. The Senate is likely to consider the bill soon, and all indications are that it is headed for passage.

Last week, the bill looked as good as dead after three GOP senators on the Senate Armed Services Committee—John Warner (R-Va.), John McCain, (R-Ariz.) and Lindsey Graham (R-S.C.)—refused to go along with President Bush’s wishes. Bush had sought to re-define the government’s interpretation of Article 3 of the Geneva Conventions, which bans "outrages upon personal dignity" and "humiliating and degrading treatment." Doing so, he argued, would provide U.S. officers greater clarity, and also leeway, in terms of the methods it could use to interrogate “enemy combatants.” The administration also requested the right to withhold evidence from suspects, as well as the freedom to hold defendants in custody without an explanation for why detention was necessary (denying them habeas corpus protection).

The proposal also raised red flags amongst dozens of former high-ranking members of the U.S. military, including former Secretary of State and Joint Chiefs of Staff Chairman Colin Powell. Facing this, along with public pressure, the administration negotiated a deal with the GOP Senate rebels whereby Geneva would not be redefined and suspects could “examine and respond to” evidence brought against them. The agreement also leaves to the president's discretion any enforcement of "less than grave" breaches of Geneva. This will effectively amend the War Crimes Act, under which all violations of Geneva are currently illegal. Additionally, all U.S. interrogators will receive retroactive legal amnesty for any such actions back to 1997.

The compromise was later tweaked in the president’s favor during meetings with House leaders, but not enough to cause Warner, McCain, and Graham to rescind the deal. With the House and these key senators happy, the bill picked up momentum despite the concerns of a number of Democrats.

The bill now only faces one significant hurdle before Senate passage: Judiciary Committee Chairman Arlen Specter (R-Pa.), Sen. Patrick Leahy (D-Vt.), and Sen. Gordon Smith (R-Ore.) are taking issue with a provision denying habeas corpus protection to detainees and are planning to offer an amendment to strike that provision. However, Specter, at least, does not appear willing to block the bill if the amendment fails.

For a more in-depth account of detainee legislation in Congress, be sure to check out Congresspedia’s great page on the topic.