By Paul Reynolds
World affairs correspondent, BBC News website
The compromise over the interrogation and trial of terrorist suspects reached by the Bush administration and leading Republican senators is one that offers some greater protection for prisoners but still leaves them open to tough questioning and to military commissions that do not follow civilian rules of evidence.
At issue here is how far a democratic society can equip itself with the methods it regards as necessary to achieve results without violating the very values it wants to protect and without prompting greater sympathy for its enemies.
Part of the story of President Bush's "war on terror" has been the way in which that balance has swung back and forth. Mr Bush has wanted the toughest possible interrogations consistent, as his administration has defined them, with US international and domestic legal obligations. Critics have argued that he has gone too far.
Treatment of detainees at Guantanamo Bay has been under scrutiny
The US Supreme Court also ruled that he had gone beyond his authority in ordering military trials, which is why he has now has to get congressional approval.
Mr Bush has certainly had to make concessions along the way. But he has also held firm to the concept of subjecting some detainees to coercive questioning and to the principle of military tribunals.
The agreement over the bill setting up the military commissions is the result of this tension, with the administration arguing it out this time with top Republican senators like John Warner and John McCain. Neither is soft on terrorism but both regard themselves as guardians of American constitutional protections.
John McCain himself was also a prisoner of the North Vietnamese and felt strongly that the proposals from the White House seeking, among other things, to restrict the application of a key article in the Geneva Conventions (Common Article 3) forbidding humiliating and degrading treatment would put future American prisoners at risk.
Single voice needed
Senator McCain's positioning himself to the left of the administration is an interesting indication of how he will run the presidential campaign he is expected to launch for 2008. He will upset some conservatives but will tap into sentiment that wants the war on terror to be conducted within more reasonable boundaries.
Apart from the legal and constitutional arguments, there was also a strong imperative for an agreement because of the forthcoming mid-term elections in which the Republicans need to be speaking with a single voice on one of their key issues.
The upshot is a complicated and at times ambiguous series of understandings that will have to be tested in practice.
The proposals will outlaw what they call "grave breaches" of Common Article 3 including, as the president's national security adviser Stephen Hadley put it, "torture, cruel or inhuman treatment".
Banned practices will be laid out in law but the president will be left to decide whether others do not amount to "grave breaches" and that is an area of dispute already.
Other measures include allowing prisoners in front of military commissions some chance of being told, in some form, of certain evidence used against them, and giving CIA and other personnel immunity from prosecution for previous violations.
At the moment all sides are emphasising different aspects.
Mr Bush himself said this: "I'm pleased to say that this agreement preserves the most single most potent tool we have in protecting America and foiling terrorist attacks, and that is the CIA programme to question the world's most dangerous terrorists and to get their secret... In short, the agreement clears the way to do what the American people expect us to do, to capture terrorists, to detain terrorists, to question terrorists, and then to try them."
Senator McCain said: "There is no doubt that the integrity and the letter and the spirit of the Geneva Conventions have been preserved."
However, the American Civil Liberties Union saw the agreement quite differently. Caroline Fredrickson, Director of its Washington Legislative Office, commented: "This is a compromise of America's commitment to the rule of law. The
proposal would make the core protections of Common Article 3 of the
Geneva Conventions irrelevant and unenforceable.
"In a telling move, during a call with reporters today,
National Security Advisor Stephen Hadley would not even answer a
question about whether waterboarding would be permitted under the
On the other hand one of the Republican senators, Lindsey Graham from South Carolina, said of waterboarding, in which a prisoner is subjected to the sensation of drowning: "It is a technique that we need to let the world know we are no longer engaging in."
Even at this late stage, it seems, there is no final clarity.
Update: Senator John McCain has since said that three methods would be outlawed -- extreme sleep deprivation, forced hypothermia and "waterboarding".
His comment was unexpected as ambiguity as to what a prisoner might expect was part of the administration's approach, but the senator is keen for greater clarity.