My guess is that such threats weren’t required as long as the GOP had control of the legislative agenda, including which amendments would be permitted to be debated, etc. Although I vaguely recall the meetings with McCain and Warner including something that amounted to a veto threat of S.3901, at least on the definition of torture / cruel and inhuman.

Saturday, July 23, 2005; Page A01

The Bush administration in recent days has been lobbying to block legislation supported by Republican senators that would bar the U.S. military from engaging in “cruel, inhuman or degrading treatment” of detainees, from hiding prisoners from the Red Cross, and from using interrogation methods not authorized by a new Army field manual.

Vice President Cheney met Thursday evening with three senior Republican members of the Senate Armed Services Committee to press the administration’s case that legislation on these matters would usurp the president’s authority and — in the words of a White House official — interfere with his ability “to protect Americans effectively from terrorist attack.”

That same battle continued through September 2006, when the Whitehouse negotiated some BS statutory arrangement where cruel and degrading treatment would be illegal but not punishable. McCain and Warner fell in line.

A quick back view to FISA too … now that I’m looking at WH policy statements from the era:

Sept 28, 2006 – Re: H.R.5825: The Administration strongly supports prompt enactment of legislation to: (1) provide additional statutory authority for the Terrorist Surveillance Program; (2) modernize the Foreign Intelligence Surveillance Act of 1978 (FISA) in light of changes in communications technology and the War on Terror; and (3) effectively protect cooperating private sector entities and U.S. personnel from liability as they carry out authorized and lawful U.S. communications intelligence activities to protect against terrorism. Accordingly, the Administration strongly supports House passage of H.R. 5825 as amended, and looks forward to working with Congress to strengthen the bill as it moves through the legislative process.

FWIW, backdating to Nov 26, 1997 instead of 9/11/2001 was done to create the legal fiction that the definition of “grave breach” was consistent from 1997 forward, and that 9/11/2001 wasn’t some sort of meaningful “break point” in US interpretation of the term “grave breach.”

I’m finding calls for interrogation immunity having formal introductions dating back to Sept 6. (S.3861).

(Sept 14) Mr. FRIST. “The President has placed a bill before this body. I introduced it about a week and a half ago. That language is available, and I encourage my colleagues to study that.”

The House version, H.R.6054, introduced by Hunter on Sept 12, 2006, also has 9/11/2001 retroactivity language. The September 15 dated House Report 109-664 – Part 1 notes “The section would also make the amendment apply retroactively to the date of enactment of the War Crimes Act, November 26, 1997. The committee notes that because no person has been prosecuted under the War Crimes Act, this amendment can apply as if enacted on November 26, 1997.” Ten days later, House Report 109-664 – Part 2 stated “Retroactivity will not affect any pending case , since no person has been prosecuted for violations of the War Crimes Act since its initial enactment.”

Eventually, S.3930 passed into
Public Law 109-366.

(2) Retroactive applicability.–The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002(e)(7) of Public Law 107-273).

My review at the time:

However, the notes associated with 18 USC 2441 describe a bit of dithering, including “1997 — Subsec. (a). Pub. L. 105-118, Sec. 583(1), as amended by Pub. L. 107-273 substituted ‘war crime’ for ‘grave breach of the Geneva Conventions’.” The point being that “grave breach” may not be useful as a “weasel” phrase.

Whole lotta ass covering going on there.

The amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

That Sept 2001 date was subsequently pushed back to a 1997 date, to correspond with a date of ratification of some part of an international convention. I think the administration made a hasty push for retroactive immunity back to 9/11/2001, then after some research, concluded that it made more sense to attach immunity for cruel and inhuman treatment to an earlier date, coinciding with adoption of standards in the area of cruel and inhuman treatment.

Anyway, I’ll look for signs of McConnell getting the word before September 22nd (I’m sure he did), and it’s a good bet that there was coordination between the House and Senate on introducing the notion of immunity on the respective subjects — a sort of “cover” for the fact that the request/demand originated in the WH, not in Congress.

The amendment of HR 5825, to include retroactive immunity for telcos, was printed on Sept. 25, 2006. Passage of HR 5825 by the House was on Sept 28th. The amendment was presented by Rep. Cannon on September 20th.

ROLLCALL NO. 13–DATE: 9-20-06 [In House Committee on Judiciary]

SUBJECT: Mr. Cannon offered an amendment to H.R. 5825, which was agreed to by a rollcall vote of 22 ayes to 16 nays [Pure Party-line vote]. This amendment would limit the civil and criminal liability of telecommunications carriers for any activity arising from, or relating to, any alleged intelligence program involving electronic surveillance that the government has certified is, was, or would be intended to protect the United States from a terrorist attack. The amendment applies to all pending and future cases, and allows all such cases to be removed to Federal court. The amendment also applies the old definition of `electronic surveillance’ contained in FISA prior to enactment of the Act.

Senate action on the Military Commissions (and FISA) was started under several bill numbers, S.3929, S.3930, and S.3931. 3930 was “just MCA” and was passed. 3931 was “just FISA” and went nowhere. 3929 was 3930 & 3931, concatenated/combined. All three Senate bills were introduced on September 22nd. S.3930 passed the Senate on September 28th. IIRC, Frist and McConnell were making noises about the MCA bill at least a few days before the trio of bills was introduced. All the language in those bills emanated from the WH.