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Toobin: Bush 'playing chicken' with senators

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(CNN) -- President Bush warned on Friday that a CIA interrogation program for terror suspects is in jeopardy unless Congress approves his proposals seeking to reinterpret America's application of the Geneva Conventions.

Bush's remarks were the latest salvo in efforts to write new rules that he said would clarify how Geneva Conventions provisions apply to detainee interrogations. A GOP-controlled Senate panel defied Bush on the issue, recommending a bill that would set up military courts without changing the U.S. reading of the Conventions.

CNN anchor Tony Harris spoke with CNN legal analyst Jeffrey Toobin on Friday about Bush's comments.

HARRIS: Were you surprised he didn't sound more of a conciliatory tone, a willingness to work more closely in finding a language here, because it seems like that's where we are: the language.

TOOBIN: I certainly was surprised because this is an area where compromise is really possible. You're dealing with pretty vague concepts.... This is why lawyers go to law school; they can write things that everybody can agree with.

But the president didn't just say... the senators' proposal was unacceptable. ... He went even further. He was really playing chicken with the senators. He was saying, "Look, go ahead and pass your law. You pass that law. If it somehow becomes law, I'm shutting this program down. And that's on your head."

So he didn't just say, "We disagree about the legislation."

He said, the implications of what the senators are doing is to end a program which the president says has been very successful in the war on terror. That's unusually strong talk against any members of Congress, much less members of his own party. But, you know, as everyone's been saying, this was an unusually combative performance by a generally pretty combative president.

HARRIS: We have to take the president at his word when he says that the problem with [the Geneva Conventions'] Common Article 3, which prohibits outrages against personal dignity, is that it is unclear. And we can't have our interrogators [who are] trying to get information that we need to protect this country under a bit of language here that is this vague. We can do better than this.

TOOBIN: And that's -- that's a powerful argument. And that's what he's going to the Senate [with], saying it's simply unacceptable to expect our CIA employees in difficult, dangerous circumstances, to be guided by this vague statute and [be] potentially criminally liable for violating it.

HARRIS: But Jeffrey ... we can be clear about this, the war crimes act criminalizes murder. We're talking about a list here, aren't we? It criminalizes murder. It criminalizes mutilation, cruel treatment, torture, humiliation. ... So are we talking about working that kind of specific language into whatever bill is crafted here?

TOOBIN: Well ... one of the arguments that the senators have is that ... this rule -- you know, you say it's so vague. The United States hasn't found it that vague for the last 60 years that they couldn't abide by it. So, yes, it does sound vague to us now. But the world and certainly the American armed forces have figured out a way to accommodate it.

But interestingly, you raise that issue of specificity. One of the issues that came up in the Supreme Court's decision just a few months ago that led to this whole controversy is the issue of conspiracy. Conspiracy ... was charged against ... one of the detainees at Guantanamo. But conspiracy is not listed in the law. So that's the kind of area where this gets complicated.

And by the way, we're portraying this as a dispute between the Senate and the president. Remember, the last word in this country always goes to the United States Supreme Court. And twice in the past three years the United States Supreme Court has said, "George Bush, you messed up. These rules are unacceptable."

So even if the president gets his proposal through, it is not at all clear that the court will approve it, especially given one provision we didn't discuss much ... secret evidence. And this is something that Sen. Lindsey Graham has focused on a lot. And he said, "Look, there's no court in America, especially the Supreme Court, that is going to uphold executing somebody ... based on evidence he never saw."

And I think Sen. Graham raises a very profound point there. So that's something that we've got to keep in mind. The politicians can agree or disagree, but they don't have the last word.

Those nine folks across First Street in Washington, they have the last word.


CNN legal analyst Jeffrey Toobin


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