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."
But Specter is expecting to raise the issue even sooner--at the upcoming Supreme Court confirmation hearings for Judge Samuel Alito. Specter intends to ask questions like those he had planned to ask Harriet Miers. Those include whether there should be any limitations as to how long foreign detainees may be held and whether someone held as an "enemy combatant" had such rights as confronting witnesses, right to counsel and access to classified information.
And these issues will rise again in confirmation hearings for Paul McNulty to become Deputy Attorney General, expected in February or March. As US Attorney for the Eastern District of Virginia, McNulty was in change of bringing cases against CIA officials and other civilians for prisoner abuse. The issue: He hasn't brought any--even in the death in captivity  of Manadel al-Jamadi, exposed by Jane Mayer in The New Yorker, where the CIA's own investigation found a likelihood of criminal wrongdoing. Before being confirmed, McNulty is likely to be asked why.
Senator McCain's anti-torture legislation, while a symbolic victory for legal limits on the government's right to torture, includes significant loopholes. Perhaps the biggest is the absence of an enforcement mechanism: It provides neither criminal nor civil penalties for violations.
Another McCain loophole was perhaps alluded to by President Bush when he said its purpose was "to make it clear to the world that this government does not torture." The kicker: The legislation leaves the US free to turn over captives to other governments and let them engage in torture on its behalf.
The House has twice passed amendments  by Representative Edward Markey of Massachusetts that would prohibit what the Bush Administration calls "extraordinary rendition" and what Markey calls "the outsourcing of torture." When the House returns for the new year, it will be forced to vote on a Resolution of Inquiry  introduced by Markey that would require government agencies to provide information on all prisoners subject to extraordinary rendition.
The uproar over rendition and torture is not restricted to the United States. United Nations High Commissioner for Human Rights Louise Arbour has warned that international human rights law has been a casualty of the so-called war on terrorism. And while European governments may share the hope  of former German Interior Minister Otto Schily that "at some point this bone will be chewed bare," the issue continues to develop a momentum among civil society and EU human rights institutions that may make it harder to silence at home.
The issues of torture, abuse, rendition and denial of detainees' legal rights are becoming part of the larger issue of unlawful extension of presidential power. In the wake of the New York Times's disclosure that Bush had authorized the National Security Agency to spy on Americans, Wisconsin Senator Russ Feingold said  it was indicative of a "pattern of abuse" that also included torture and secret prisons, revealing that the President is "grabbing too much power."
A new report  called "The Constitution in Crisis: The Downing Street Minutes and Deception, Manipulation, Torture, Retribution and Coverups in the Iraq War," just released by Michigan Representative John Conyers and the House Judiciary Committee Democrats, identifies the White House position on the Geneva Conventions and international law as one of the many elements for which there is substantial evidence that top Bush Administration officials violated federal laws. It calls for a Resolution of Censure, a Justice Department criminal investigation and a Select Committee to investigate Bush Administration misconduct.
In backing the use of coerced testimony and the denial of habeas corpus, Congress is making itself a party to the Bush Administration's abuse of power. And it's not just Republicans. Even some Democrats with reputations as civil libertarians, notably Michigan Senator and Graham amendment co-sponsor Carl Levin, supported the changes included in the bill. Michael Ratner warned before final passage, "If the Democrats fail to filibuster this bill, they are complicit in selling out the Constitution on this."
Ratner adds, "We need to litigate every single issue in our courts, in European courts and every possible national and international venue. But unraveling this outlaw administration is going to take more than courts. It is going to take almost a popular rebellion. The way to do this is to go to every university, every public forum, hold mock trials, street demonstrations, for people to say: We do not believe in one-person rule in the US." As "The Constitution in Crisis" concludes, "It is incumbent on individual Members of Congress as well as the American public to act to protect our constitutional form of government."