Editor’s Note: Paragraphs nine and ten of this commentary were updated December 5, adding attribution to Newsweek magazine for quotes from spokesmen for the White House and Justice Department.
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 Guantánamo have used to take their cases to civilian courts.
In the 2004 case Rasul v. Bush, brought on behalf of Guantánamo 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 Guantánamo 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 Guantánamo 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 Guantánamo 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.”