The text of the compromise reached this afternoon between the White House and Senators Warner, Graham, and McCain is available here. Here's a brief summary:
1. Availability of the Geneva Conventions as a rule of decision:
The senators have come around to the White House position, and have agreed to preclude invocation of the GC's in any context (rather than just in the context of lawsuits for damages as in their earlier draft). Note that this will preclude a GC-based challenge to a CSRT determination in the D.C. Circuit. Unless the DC Circuit (and later, the SCT) determines in Boumediene / al Odah that noncitizen detainees at GTMO have constitutional rights, then, it's not clear what claims they'd have left to pursue in such a challenge (which is, in part, the point).
2. War Crimes Act amendment:
The senators have come around to the White House position on amending the War Crimes Act, more or less. Both prior bills would amend 18 USC 2441 by replacing the blanket criminalization of CA3 violations with a list of actions that would amount to grave breaches of CA3, limiting prosecution to those grave breaches. The agreed list of such offenses now conforms to the White House version, or so it appeared after a quick glance (please comment if you think otherwise). Perhaps I'm reading this wrong, but I gather this would permit at least some of the more coercive CIA techniques to continue.
3. Limiting the War Crimes Act stated to be in compliance with GPW Art. 129:
This is interesting. I noted below the possibility that someone might contend that the failure to criminalize all violations of CA3, rather than just the ones listed in the section described above, might itself be a breach of US obligations under the GCs. The compromise language anticipates that argument, and provides that the amended list sufficiently criminalizes grave breaches of the GCs. The relevant GPW provisions are Articles 129 and 130, which provide:
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.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.
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. "
4. No foreign or international precedent when interpreting the new WCA:
The compromise purports to forbid a reviewing court from relying on precedent from any foreign or international source to "supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions" specified in the new War Crimes Act, CA3 grave breach laundry list. Very interesting. Does Congress have the power to cabin a reviewing court's interpretive authority this way? Very interesting indeed.
5. Judicial Deference to Executive Treaty Interpretations:
Speaking of cabining a court's interpretive authority...the compromise also specifies that "[a]s provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions . . . ." Wow. Those who are following these events closely will appreciate this one. Post-9/11 events have shown that there are a number of critical issues under the GCs that require a bit of treaty interpretation. In the D.C. Circuit's Hamdan opinion, the majority held that the President's resolution of these issues controls so long as it is reasonable. The SCT majority in Hamdan implicitly rejected that view in the course of rejecting the President's CA3 interpretation on the merits, over a dissent by Thomas and Scalia decrying the majority's failure to defer (or even to mention the deference doctrine). This section should be seen as a bid to avoid that result in future cases (interpreting, for example, Articles 4 and 5 of GPW). Coincidentally, I literally have just finished drafting an article about this very topic , though I plainly will have to touch it up now to address this legislative development. In any event, similar question as in #4 above: Can Congress mandate that courts defer to executive treaty interpretations?
6. Revised CID Prohibition
Interestingly, the draft concludes with what appears at first glance to be a restatement of the McCain Amendment prohibition on any US personnel engaging in cruel, inhuman, or degrading treatment of any detainee held by the US anywhere in the world. As before, the CID standard is equated with the shocks-the-conscience (i.e., substantive due process) standard. I may be missing a distinction between this language and the original McCain Amendment, though, so please speak up in the comments if so.