Since the president sent the detainee interrogation - military commissions legislation to the Hill last week, there's been much debate over its scope and propriety. The McCain-Graham-Warner bill, passed by the Senate Armed Services Committee (SASC) yesterday, declines to clarify the crimes for which US soldiers and CIA interrogators can be held liable for war crimes under Common Article 3 of the Geneva Convention. CIA Director Gen. Michael Hayden told the SASC, before it passed the bill, that if the bill were enacted in that form, the CIA would have to cease operating its secret interrogation/prison facilities.

Here's a memo Gen. Hayden sent to all CIA employees yesterday before the SASC acted:

Last week the President publicly confirmed a CIA detention and interrogation program that has been instrumental in defending the homeland, attacking Al Qa'ida and saving thousands of American and Allied lives. Unclassified background on the program and some of the individuals now being brought to justice because of it are available on the DNI's web site.

Since the President's speech, there has been a lot of commentary on Capitol Hill and in the press on the way ahead for these and any future detainees. A lot of the discussion has to do with how military commissions will be conducted--rules of evidence, how classified information could be presented to the court, how to view the whole question of coercion. These are obviously important issues but, at their heart, they are issues for the Department of Defense (which will conduct the commissions) and the Department of Justice (which crafted the language in the Administration's bill). Far more central to us at CIA is the discussion of what is commonly known as "Common Article 3" of the Geneva Conventions.

In his speech the President talked about "an alternative set of procedures" used by the CIA in interrogating key Al Qa'ida detainees. The Justice department has ruled that these procedures have been consistent with our obligations under the Constitution, US law and our international treaty obligations (e.g., the Convention Against Torture).In June, however, the Supreme Court in the Hamdan decision for the first time in US law extended the protection of Geneva's Common Article 3 to what everyone agrees are the "unlawful enemy combatants" of Al Qa'ida.

Clearly, for us to continue the program that the President described, we now need to ensure that it is consistent with the provisions of Common Article 3. Our problem is that Common Article 3 was crafted to be intentionally general and vague; it forbids "outrages upon personal dignity" and "humiliating and degrading treatment." These terms have never been further defined in US law. Indeed, when the Senate ratified the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, it determined that the words "inhuman" and "degrading" were so vague that using them in a criminal statute would violate U.S. Constitutional due process standards. The Senate therefore provided a definition for those terms as a condition of ratifying the Convention, and later used that same definition for the Detainee Treatment Act of 2005.

I have made several trips to Capitol Hill in the last few days. In each instance I have asked the Congress for clarity. We need their help in defining the Nation's (and CIA's) responsibility under Common Article 3. I did not ask them to redefine Common Article 3. I did not ask them to create a CIA "carve out." I did not ask them to back away from our Nation's commitment to Geneva. I am simply asking Congress to help define our responsibilities so that we and the Department of Justice can judge the appropriateness of any procedures we would propose to use. The Bill submitted by the Administration does this by declaring that US responsibilities under Common Article 3 are met by compliance with the Detainee Treatment Act (including Senator McCain's Amendment) passed last December. Other language is certainly possible but we must have a definition that is not subject to multiple interpretations.

I have met with the full Senate and House Intelligence Committees and outlined in detail the past and present of the CIA detention and interrogation program. I have also promised them that, once we have achieved sufficient clarity in law with regard to Common Article 3, I would come back to discuss with them in detail the way ahead.

I know that these are not simple issues and honest people can and will disagree. And these are also--given the complexity of the issues, the current "energy" in the political process, and the sometimes sporadic nature of the press coverage--very confusing issues, as well. I just wanted to give you some clarity on how we view what has been going on and what we have been saying. At the end of the day, the Director--any Director--of CIA must be confident that what he has asked an Agency officer to do under this program is lawful. That's the story here.

Why would McCain, a former POW, Graham, a JAG lawyer, and Warner, himself a veteran of combat, be willing to leave our people at risk of prosecution under unclear laws?