Warner, McCain and Graham: Look Past The Tortured Distortions

[question everything]

The Wall Street Journal

Look Past The Tortured Distortions
By JOHN W. WARNER, JOHN MCCAIN and LINDSEY O. GRAHAM
October 2, 2006; Page A10

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We also believe that the American people deserve to have this important legislation properly described. Some recent reports, in our view, have not reflected accurately the bill we negotiated. The following points deserve clarification in order that this important legislation may be fully understood by the American people.

- Criminal Waiver: A number of recent articles state that in our compromise with the president, we included a waiver for crimes Americans may have committed in interrogating detainees. In fact, our bill contains no waiver for such crimes, nor immunity for any individual. Anyone who has committed a crime may be prosecuted under the torture statute or the War Crimes Act.
- Enemy Combatants: Other reporting asserts that the definition of "illegal enemy combatant" in the bill could subject a broad category of people to arrest and indefinite detention with no hope of appeal. Actually, the proposed legislation simply establishes the jurisdiction of military commissions. That jurisdiction extends solely to aliens who have engaged in hostilities against the United States or who have purposefully and materially supported hostilities against us.

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- The Geneva Conventions: Another misunderstanding is that the bill gives the president the power to reinterpret unilaterally the Geneva Conventions. In fact, the president, under this legislation, has no power beyond that already given him in the Constitution: the authority to interpret treaty obligations binding on the executive branch... This legislation requires the president to publish his determinations as to what offenses constitute "non-grave breaches" of the Geneva Conventions in the Federal Register.
- Habeas Corpus: Another myth is that, under our bill, detainees would lose the basic right to challenge their imprisonment. Actually, both the Detainee Treatment Act and the Military Commissions Act allow an individual to challenge his status in administrative and judicial fora.
- Judicial Review: Other critics claim that our civilian courts would have no power to review any aspect of the military tribunal system, except verdicts by military tribunals. The truth is that our federal courts today already have the right to review the decisions made by military Combatant Status Review Tribunals.

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Offenses: Finally, there is some confusion about the definitions of torture and rape within the bill. As is made explicit in the legislation, these definitions are for the purposes only of enumerating war crimes -- offenses so serious that they are all potentially punishable by death. They do not affect other legal definitions for the same terms (including torture and rape) contained elsewhere in law. The bill's definition of rape is based on the meaning used in the International Criminal Tribunal for the Former Yugoslavia.

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Messrs. Warner, McCain and Graham are Republican senators for Virginia, Arizona and South Carolina, respectively.

URL for this article:
http://online.wsj.com/article/SB115975391846979627.html (subscription)