Talking Points This Time Thoughtful Points

When I first came across the Republican Policy Committee's paper "Responding to Hamdan" I figured it would be just another political hack job designed to muddy the truth about the complex fate of terror detainees through the use of mindless "talking points." I was wrong. The 16-page summary of the competing positions taken by the Bush Administration and its Senate opponents turns out to be a decent (if not entirely unflawed) analysis of the legal issues our government must resolve if we are to try the Guantanamo Bay detainees both quickly and fairly and also position ourselves to be able to conduct future interrogations around the world.

Here is an example. The GOP paper states that: "The Administration proposes to clearly define the meaning of arguably vague terms in Common Article 3 -- prohibitions against "outrages upon human dignity" and "humiliating and degrading treatment" -- by explicit reference to the Detainee Treatment Act of 2005. That law requires interrogations to comply with existing U.S. constitutional standards. The President has argued that U.S. personnel require clear guidance on the meaning of Common Article 3, or they will not be able to do their jobs." That is NOT an unreasonable or oversold description of the legal position the White House is taking.

As for the legislation that Republican Senators John McCain (R-Ariz.), John Warner (R-Va.) and others are promoting, the GOP paper states: "The SASC bill would protect U.S. personnel from prosecution for vague interpretations of Common Article 3, but would not attempt to define Common Article 3 itself. SASC bill supporters argue that providing explicit definition to Common Article 3 could backfire on the United States and hurt U.S. personnel in future conflicts." That, too, is not an unfair way of summarizing the position of White House opponents in this fight.

The flaws mostly come from the descriptions of the detainees. For example, the paper notes that "these terrorists and enemy combatants are not `prisoners of war' as a matter of law because they do not fight for foreign states, and they operate in violation of the laws of war on a regular basis." Well, that last phrase ain't exactly so, at least so far as we know. Remember, the vast majority of detainees at Guantanamo Bay were simply low-level Taliban members fighting against the Nothern Alliance. Also, the report unsurprisingly gives President Bush the benefit of many doubts when it comes to his assertions of the success of the CIA's "special" interrogation program. Still, it's worth reading.

By Andrew Cohen |  September 20, 2006; 2:30 PM ET
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