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Protecting The Torturers
By Jeremy Brecher and Brendan Smith
12/07/05 "The
Nation" -- -- Thousands of well-meaning people are
mobilizing to pressure Congress to pass legislation banning torture.
But the Bush Administration is maneuvering to turn it into
legislation that would instead protect the torturers by eliminating
a basic legal right. To stop them, torture opponents will need to be
not just as innocent as doves but also as cunning as foxes.
When Congress returns to Washington on Monday, a campaign will
unfold in support of Senator John McCain's legislation banning
torture, which is attached to a defense bill. But McCain's amendment
is accompanied by one from Senator Lindsey Graham that bans the
appeals that prisoners at Guantanamo have used to take their cases
to civilian courts.
In the 2004 case Rasul v. Bush, brought on behalf of Guantanamo
captives, the Supreme Court established the right of foreigners held
by the United States to habeas corpus, the 800-year-old legal
procedure grounded in the Magna Carta and enshrined in the US
Constitution, which requires government officials to explain to a
court why they are holding someone in captivity. Graham's amendment
strips courts of the power to hear such cases.
Graham sprang his amendment on the Senate in the closing days of the
session with no hearings and little debate. A firestorm of criticism
forced Graham to accept a compromise--negotiated with Democratic
Senator Carl Levin--that allows captives limited appeals to civilian
courts. (Newsweek has reported that Attorney General Alberto
Gonzales and White House Counsel Harriet Miers were also in on the
negotiations.) But the Graham compromise still strips federal courts
of jurisdiction to hear applications for habeas corpus brought by
Guantanamo prisoners.
The Senate passed the compromise amendment 84 to 14. Republican
Senator Arlen Specter, chair of the Senate Judiciary Committee,
described it as "a sophisticated, blatant attempt at
court-stripping."
Bill Goodman, legal director for the Center for Constitutional
Rights, which brought the first habeas corpus cases for Guantanamo
captives, says the Graham amendment "will formalize the lawless
policies of the Bush Administration that allow the Department of
Defense to hold prisoners indefinitely without any requirement that
it show any reason for doing so." That has and will continue to
result in "torture of US prisoners."
The Graham amendment bans habeas corpus appeals against conditions
of confinement. The consequence, according to Michael Dorf, the
Sovern Professor of Law at Columbia University, is that "a prisoner
cannot get into federal court by claiming (or presenting evidence)
that he is being subject to torture or otherwise degrading
treatment."
Deviously, the Graham amendment has been packaged with McCain's
anti-torture amendment. But the package will make things worse, not
better, for Guantanamo captives unless Graham's amendment banning
habeas corpus is removed. As Bill Goodman points out, while the pair
of amendments "profess to ban torture," without the right to
judicial oversight, they are "defanged." They are "a right without a
remedy and, as such, meaningless."
The Bush Administration is now negotiating with Graham and others to
make the legislation even more restrictive. A Justice Department
spokesperson told Newsweek, "We definitely agree with the principle
behind the current bill, though there are still some concerns that
the language may need to be improved." White House spokesman Trent
Duffy also told Newsweek that the White House is positive about the
Graham bill and is "working with Senator Graham on technical
aspects" of the legislation.
Attorney General Alberto Gonzales has talked with Senator Graham
about the bill at least twice. The Justice Department spokesperson
told Newsweek Gonzales was "particularly focused on thwarting some
of the 160 habeas lawsuits filed by Gitmo detainees." (Gonzales was
the author of the notorious 2002 memo advising the President that
the Geneva Conventions did not apply in order to provide "a solid
defense to any future prosecution" of US officials under the War
Crimes Act. Gonzales's personal role in laying the groundwork for
torture is sufficient for professor Marjorie Cohn, now
president-elect of the National Lawyers Guild, to have drafted an
indictment of Gonzales for violating the War Crimes Act.)
The Bush Administration is apparently divided. Despite the role of
the White House in preparing the Graham compromise amendment, Vice
President Cheney opposed it. Indeed, Cheney has fought any
legislation that would eliminate the government's right to torture,
though he seems willing to compromise on language that leaves the
CIA, but not the military, free to torture. In the past, President
Bush has threatened to veto the entire defense bill if McCain's
anti-torture amendment is included.
Both the Graham and McCain amendments are attached to a defense bill
that now goes to a Senate-House conference. Graham and Levin plan to
demand that the final legislation include both.
The conference committee will undoubtedly be the focus of pressure
from those who want to preserve the right of habeas corpus. A
statement by Habeas Counsel, the coalition of prestigious attorneys
representing Guantanamo captives, says, "To legislate this way is
disgraceful. It is also completely unnecessary. This is not an
emergency situation. The Graham-Levin amendment should be stripped
out in conference. The genuine deliberation required by the gravity
of the issue can then begin."
Representative Edward Markey of Massachusetts, a member of the
Progressive Caucus and an outspoken opponent of torture and
"extraordinary rendition" (a k a government-run kidnapping),
describes the task facing cunning progressive foxes:
"If the US wants to demonstrate that we are a nation committed to
justice and the rule of law, we should adopt the McCain amendment
barring torture and drop the Graham amendment suspending habeas
corpus rights for those detained at Guantanamo Bay. If persons held
by the US lack the right to challenge their detention or their
treatment, the McCain amendment's protections against torture and
other forms of cruel or humiliating treatment may turn out to be
illusory."
Only nine of the more than 500 Guantanamo captives have even been
charged with crimes, and their trials are being prolonged year after
year. This is exactly the situation habeas corpus is designed to
remedy. And without it, the captives can rot in prison forever and
possibly be subject to torture and inhumane treatment that the
courts are unable even to learn about.
Graham and the Bush Administration oppose rights for Guantanamo
detainees in part on the grounds that they are terrorists who
deserve no better. They refuse to face the very real possibility of
innocent people caught up in the system, acknowledged by the
military's own commanders at Guantanamo. According to the Wall
Street Journal:
"American commanders acknowledge that many prisoners shouldn't have
been locked up here in the first place because they weren't
dangerous and didn't know anything of value. 'Sometimes, we just
didn't get the right folks,' says Brig. Gen. Jay Hood, Guantanamo's
current commander."
Graham's original proposal to eliminate habeas corpus for foreign
captives was met by extraordinary condemnation. Ten retired military
leaders endorsed a letter from Rear Adm. John Hutson calling the
restriction on habeas corpus a "momentous" change. "The practical
effects of such a bill would be sweeping and negative." Signers
included Army Lieut. Gen. Robert Gard, Marine Maj. Gen. Fred Haynes
and other senior officers.
Eugene Fidell, president of the National Institute of Military
Justice, the organization of military lawyers, said the Graham
amendment would sanction "unreviewable executive detention that
cannot be harmonized with the nation's longstanding adherence to the
rule of law."
The American Bar Association has urged the Senate to reconsider and
defeat the original Graham amendment. Michael Greco, president of
the association, gave a stirring defense of habeas corpus, which
"cannot and should not" be replaced by the "extremely limited
review" provided by the Graham amendment, which "would undermine the
very principles that distinguish us from our enemies."
Does Congress have the power to tell the Supreme Court what cases it
can or cannot hear? In American law, courts have the power to review
the constitutionality of legislation passed by Congress, but they
tend to defer to the other branches of government, especially where
national security issues are involved.
Both Graham's original amendment and his compromise amendment
directly conflict with the Supreme Court's decision in Rasul v. Bush
that Guantanamo captives have the right to habeas corpus. The
Supreme Court recently agreed to hear Hamdan v. Rumsfeld, a
challenge to the constitutionality of the Bush Administration's
military tribunals for Guantanamo captives.
No one knows how the Court would respond to an instruction from
Congress to reverse its interpretation of the Constitution. Indeed,
the conflict over the power of courts to hear prisoners' appeals is
plunging the country into an ongoing constitutional crisis in which
all three branches of government are involved.
Since treatment of captives held by the United States has included
well-documented cases of torture, brutality and even treatment
leading to death, the Graham amendment would erect a screen behind
which such crimes may be conducted with impunity. Opponents of
torture need to make sure they are not inadvertently helping to pass
an amendment that would protect torturers.
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