Exception Sought in Detainee Abuse Ban

By ERIC SCHMITT

New York Times

October 25, 2005

WASHINGTON, Oct. 24 - Stepping up a confrontation with the Senate over the handling of detainees, the White House is insisting that the Central Intelligence Agency be exempted from a proposed ban on abusive treatment of suspected Qaeda militants and other terrorists.

The Senate defied a presidential veto threat nearly three weeks ago and approved, 90 to 9, an amendment to a $440 billion military spending bill that would ban the use of "cruel, inhuman or degrading treatment" of any detainee held by the United States government. This could bar some techniques that the C.I.A. has used in some interrogations overseas.

But in a 45-minute meeting last Thursday, Vice President Dick Cheney and the C.I.A. director, Porter J. Goss, urged Senator John McCain, the Arizona Republican who wrote the amendment, to support an exemption for the agency, arguing that the president needed maximum flexibility in dealing with the global war on terrorism, said two government officials who were briefed on the meeting. They spoke on condition of anonymity because of the confidential nature of the discussions.

Mr. McCain rejected the proposed exemption, which stated that the measure "shall not apply with respect to clandestine counterterrorism operations conducted abroad, with respect to terrorists who are not citizens of the United States, that are carried out by an element of the United States government other than the Department of Defense and are consistent with the Constitution and laws of the United States and treaties to which the United States is a party, if the president determines that such operations are vital to the protection of the United States or its citizens from terrorist attack."

Spokesmen for Mr. McCain, Mr. Cheney and Mr. Goss all declined to comment on the matter Monday, citing the confidentiality of the talks.

Human rights organizations said Monday that it was unclear whether the language in the changes proposed by the White House meant that the president would decide exemptions case by case or whether there would be more of a blanket authority. But they said the administration's proposal would seriously undermine Mr. McCain's measure.

Elisa Massimino, Washington director of Human Rights First, formerly the Lawyers Committee for Human Rights, said the administration had interpreted an international treaty banning torture to mean that a prohibition against cruel and inhumane treatment did not apply to C.I.A. actions overseas.

"That's why the McCain amendment is important, and that's why this language they're floating now would gut it," said Ms. Massimino, who provided a copy of the administration's proposed changes to The New York Times.

Human rights advocates said that creating parallel sets of interrogation rules for military personnel and clandestine intelligence operatives was impractical in the war on terrorism, where soldiers and spies routinely cross paths on a global battlefield and often share techniques

"They are explicitly saying, for the first time, that the intelligence community should have the ability to treat prisoners inhumanely," Tom Malinowski, Washington advocacy director for Human Rights Watch, said. "You can't tell soldiers that inhumane treatment is always morally wrong if they see with their own eyes that C.I.A. personnel are allowed to engage in it."

Mr. McCain's provision faces stiff opposition in the House, which did not include similar language in its version of the spending bill.

The White House has threatened to veto any bill that includes the McCain provision, contending that it would bind the president's hands in wartime.

But Mr. McCain has kept the pressure on as the issue moves to a House-Senate conference committee, perhaps later this week or next. Shortly after the Senate vote on Oct. 5, Mr. McCain's staff sent members of the conference committee letters endorsing the provision signed by more than two dozen retired senior military officers, including former Secretary of State Colin L. Powell and John M. Shalikashvili, both former chairmen of the Joint Chiefs of Staff.

The matter will probably be settled in a private meeting in the next week or two among four senior lawmakers: Senator Ted Stevens of Alaska and Representative C. W. Bill Young of Florida, both Republicans; and Senator Daniel K. Inouye of Hawaii and Representative John P. Murtha of Pennsylvania, both Democrats. All are on the conference committee.

Mr. McCain originally offered his measure earlier this year, when the Senate was working on a bill setting Pentagon policy. But Senator Bill Frist of Tennessee, the majority leader, scuttled that bill, partly because of White House opposition to the amendment.

Now it appears that senators have struck a deal to revive the budget bill for Senate floor debate and action. One of the principal amendments that Democrats are expected to offer, sponsored by Senator Carl Levin, a Michigan Democrat, would create an independent commission to review accusations of prisoner abuse by American forces in Iraq, Afghanistan, Cuba and elsewhere. The White House has also threatened a presidential veto if any bill comes to Mr. Bush's desk that contains the provision.