Congress passed just before Christmas legislation allowing evidence obtained by torture to be used against Guantánamo captives and denying them the right to habeas corpus–the right to make the government justify their captivity before a court. Christopher Anders of the American Civil Liberties Union calls these provisions “horrific precedents” that are “counterproductive and against the rule of law.” Michael Ratner, head of the Center for Constitutional Rights, calls it “a legal, political and moral outrage” and “the worst thing to happen legislatively in my history as a civil rights litigator.”
This assault on the most venerable and universal of legal principles is attached to the same legislation as Senator John McCain’s anti-torture measure. But it provides a legal incentive to torture and blocks the main vehicle that federal courts and human rights advocates have used to uncover and challenge prisoner abuse at Guantánamo.
This language fulfills one clear purpose: to prevent courts from hearing evidence of torture, abuse and unlawful activity. What it protects is not the security of Americans against terrorism but the security of high government officials against prosecution for violation of the Anti-Torture and War Crimes Acts.
But in today’s climate of growing resistance to the abuse of presidential power–evidenced by the blocking of Patriot Act renewal, the firestorm of outrage at NSA domestic spying and the McCain anti-torture amendment itself–the Bush Administration’s torture cover-up may be short-lived. Human rights groups and members of Congress are already gearing up for the next round.
Human rights attorneys will take the Graham amendment on in the courts. CCR’s Ratner says, “We are going to litigate the hell out of this. We have hundreds of high-powered attorneys who work with Guantánamo cases who are really angry.” In the last few days lawyers have filed habeas corpus petitions covering virtually all of the detainees whose identities they have been able to discover; 105 petitions now cover several hundred detainees. Their lawyers will argue that under the Supreme Court’s Rasul v. Bush decision, “we can still bring habeas corpus petitions.” The result is likely to be “years of litigation.”
A second arena will be Congress. On December 14, Senate Democrats and Republicans agreed to legislation requiring the national defense intelligence director to give Congress regular, detailed updates about secret US detention sites overseas. And on December 16, the House passed 228 to 187 a nonbinding resolution supporting the same requirement. Missouri Representative Ike Skelton, top Democrat on the House Armed Services Committee, says, “Meaningful oversight must include proper scrutiny of all US detention facilities, whether those facilities are located on US or foreign soil.”
Back in June, Senator Arlen Specter, chair of the Senate Judiciary Committee, held the first hearings on Guantánamo. Noting that the Constitution confers upon Congress the power to “make Rules concerning Captures on Land and Water,” he called the Supreme Court decisions on detainee rights a “crazy-quilt of decisions.” In August he went to Guantánamo himself. He began drafting legislation to address the legal rights of Guantánamo captives. He planned to hold a hearing at Guantánamo and considered pushing for a 9/11-style commission to investigate the situation at the prison. Specter vehemently opposed the Graham amendment, and said that until there is a “comprehensive approach,” the “Judiciary Committee will still be wrestling with these problems.”