Facilitating Abuse

By JOANNE MARINER

Friday, Nov. 25, 2005

The most shocking moment during the oral argument of a 2003 case reviewing whether detainees on Guantanamo had any right of access to the federal courts came when government counsel argued that judicial oversight should be barred even if U.S. forces were committing "acts of torture" on Guantanamo or were "summarily executing the detainees." As the appellate court hearing the case later emphasized, "to our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government [had] never before asserted such a grave and startling proposition."

But back then, at least, the U.S. position seemed hypothetical. That was still some months before the Abu Ghraib scandal erupted, and before the similar mistreatment of detainees at Guantanamo became known.

It was before the public learned of the "torture memos," the photos, the videos, the ex-detainee testimonies, the FBI memos, and the myriad other proofs attesting to the abuse of prisoners in U.S. custody.

Now, after nearly two years of continuing revelations, we are sadly wiser. We know that countless detainees have been physically abused and that some were apparently tortured to death. We know that whatever safeguards existed to protect prisoners in U.S. custody, they didn't work.

Given this knowledge, it should be inconceivable that we would want to strip detainees of protection from abusive treatment. And yet just last week, eighty-four members of the U.S. Senate voted in favor of an amendment to a defense spending bill that would bar Guantanamo detainees from going to federal court to seek protection against violent physical abuse.

The Graham-Levin Compromise: Partial Jurisdiction-Stripping

The Senate measure, known as the Graham-Levin amendment for the two senators who drafted it, is viewed as a compromise. It is less radical than an earlier amendment proposed by Senator Graham, which would have barred the courts from exercising jurisdiction over nearly all claims of detainees at Guantanamo.

Under the current version of the Senate legislation, now pending before a House-Senate conference committee, the U.S. Court of Appeals for the D.C. Circuit would be allowed to hear detainees' claims that their detention is unlawful or violates the Constitution. It would also be able to review the cases of detainees convicted by military commissions.

To that limited extent, then, the measure would preserve the historic Supreme Court ruling in Rasul v. Bush -- the 2004 decision in which the Court rejected the government's claim that Guantanamo was outside of the law.

But if held to be constitutional - an outcome that is far from assured -- the amendment would cut back on Rasul's holding considerably. Most significantly, a detainee's claim of torture or cruel, inhuman, or degrading treatment would not get a hearing in federal court.

The McCain Amendment Barring Cruel, Inhuman or Degrading Treatment

The timing of the Senate's jurisdiction-stripping effort is especially unfortunate. In October, after evidence emerged that U.S. troops wanted and needed guidance in dealing with prisoners, Senator John McCain drafted legislation to establish minimum standards for detainee treatment.

McCain's amendment, which passed the Senate in a 90-9 vote (and which subsequently passed again on a unanimous voice vote), would ban the "cruel, inhuman or degrading treatment or punishment" of any prisoner in U.S. custody. It would also require U.S. troops to use only those questioning techniques authorized in the Army Field Manual for Intelligence Interrogation.

In light of the abuses that have been committed on Guantanamo and elsewhere, McCain's draft legislation marks an important step forward. Its passage would send a strong signal that the United States is determined to ensure that its treatment of detainees reflects the country's constitutional and moral values.

Yet, despite the overwhelming show of Senate support for McCain's amendment, its passage is not assured. Objecting to any constraint on executive power - even on the power to inflict cruelty on prisoners - the White House has threatened to veto legislation that contains the amendment. Some believe that, as part of a larger compromise, the passage of the Graham-Levin amendment could help reconcile the Administration to the McCain provisions.

But passing McCain together with Graham-Levin would go a long way toward eviscerating the former's impact. The McCain amendment would establish clear standards to prevent prisoner abuse, while Graham-Levin would ensure that the courts could not hear violations of these standards. A law that put the two amendments together would be a disappointing compromise.

The Choice of Passing McCain and Dropping Graham-Levin

The defense spending bill to which both the McCain and the Graham-Levin amendments are attached is currently in a congressional committee charged with reconciling its House and Senate versions. Because the House version of the legislation contained neither amendment, the bill's final draft could drop one or both of them.

When legislators return to the Capitol in December, their course of action should be clear. Rather than facilitating violent abuses by barring court oversight, they should ban the mistreatment of prisoners and uphold the rule of law.


Joanne Mariner is a New York-based human rights attorney. Her prior columns on Guantanamo, Abu Ghraib, and the Bush administration's detention policies can be found in FindLaw's archive.

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