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Critics Question Senateâ€TMs Supposed ‘Anti-tortureâ€TM Stance

by Michelle Chen

While most media treatment of the McCain torture “ban” is repeating politicians’ spin, civil libertarians see compromise legislation has rendered it largely toothless and possibly added to the problem.

Dec. 22, 2005 – The controversy over torture is approaching an equally controversial milestone as Congress and the White House finalize legislation governing the treatment of captives held in US custody. While celebrating the so-called "torture ban" as a legislative victory, civil liberties groups are questioning caveats attached to the final version that could condone or even encourage abusive practices under government authority.

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The anti-torture measure, introduced by Senator John McCain (R-Arizona) as an amendment to the defense spending bills, clarifies standards for the treatment of people imprisoned in the so-called "war on terror." The legislation responds to mounting public concerns about detainee abuse, but fears of political gridlock drove legislators to balance the torture restrictions with limits on the legal rights of detainees at the Guantánamo Bay detention center in Cuba.

Though many support the spirit of the amendment, approved by the Senate in October and by the House last week, several civil liberties organizations contend that political jockeying has produced legislation that would likely abet abuse, rather than deter it.

Michael Ratner, president of the Center for Constitutional Rights, which has led litigation to defend the rights of hundreds of detainees, is among the most vocal critics. Ratner told The NewStandard that legislators have "left the people at Guantánamo possibly subject to the very thing they’ve tried to prohibit. They gave with one hand and took with the other."

The Graham-Levin amendment restricts detainees’ access to the judicial system, potentially permits the use of evidence obtained through abusive tactics, and provides certain protections to CIA personnel who violate the ban.

Setting Rules

The McCain amendment forces the military and Central Intelligence Agency to abide by interrogation guidelines in the US Army Field Manual, which are consistent with the Geneva Conventions, an international treaty on civil rights during wartime. The Manual bars or restricts practices such as forcing prisoners into painful positions or intimidating them with dogs. In addition, the amendment also explicitly bans "cruel, inhuman, or degrading treatment or punishment" at Guantánamo Bay and other detention centers.

The strictures are based on constitutional mandates as well as United Nations agreements that the US has ratified. Critics of the "ban" say it simply reiterates existing law that should apply to counter-terrorism efforts.

For months, the White House threatened a veto if the amendment stayed on the must-pass defense appropriations bill, even though it has denied condoning any unlawful treatment of detainees. To quell that opposition, Senators Carl Levin (D-Michigan) and Lindsey Graham (R-North Carolina) negotiated an additional amendment to the final legislation. Their amendment is similar to one Graham attempted to pass through Congress last month by attaching it to an oversight bill.

The Graham-Levin amendment restricts detainees’ access to the judicial system, potentially permits the use of evidence obtained through abusive tactics, and provides certain protections to CIA personnel who violate the ban.

Another controversial provision shields operatives from legal penalties if they show they inadvertently violated the ban while acting on “ordinary sense” or under advice from a lawyer.

The judicial restrictions prohibit detainees from directly challenging the legality of their detentions in US courts. This upends a landmark Supreme Court decision in 2004 that enabled Guantánamo detainees to file claims of wrongful imprisonment.

In place of regular courts, the Graham-Levin legislation affirms the authority of the Combatant Status Review Tribunals and the Military Commissions at Guantánamo, which the Bush administration created to judge whether individuals are legitimately detained and to try them for alleged crimes. The system has run up against numerous constitutional challenges as well as international criticism because it operates outside the legal system in relative secrecy.

The Graham-Levin amendment effectively limits court review to appeals of military rulings, barring other claims related to the mistreatment of prisoners. Granting the DC appeals court exclusive jurisdiction, the statute specifically allows a detainee to appeal sentences of death or imprisonment for ten years or longer, and to challenge his designation as a "combatant." Such claims would hinge only on whether the military violated procedural rules or legal obligations -- "to the extent [that] the Constitution and laws of the United States are applicable."

Civil libertarians fear that by not defining which rights are "applicable" to detainees, Congress leaves the statute open to further court battles. Mark Agrast, a senior fellow with the liberal think tank Center for American Progress, told TNS the wording "seems to suggest that the court might find that the Constitution doesn’t apply here. And if the Constitution doesn’t apply, then there is no basis for a constitutional challenge."

Although Levin stated publicly that the amendment is not retroactive, advocates are concerned that the provisions might nonetheless influence rulings on pending litigation. The scope of jurisdiction will soon be tested in the Supreme Court’s upcoming review of the Hamdan versus Rumsfield case, which addresses the legality of the military commissions.

Another controversial provision in the final anti-torture amendment shields operatives from legal penalties if they show they inadvertently violated the ban while acting on "ordinary sense" or under advice from a lawyer.

Jen Daskal, advocacy director for US programs with Human Rights Watch, warned that many future detainees will lack any legal recourse while waiting indefinitely for a tribunal hearing. Not only might this condemn people who are not facing charges to "a legal no-man’s land," she said, but it could also impede her group’s monitoring work, which draws on information gathered through legal actions. By preventing detainees from raising complaints, she predicted, the legislation "will make it much harder to know when there’s abusive practices going on and to expose them."

License to Torture?

The Graham-Levin amendment explicitly enables the Combatant Status Review Tribunal to admit evidence extracted from a detainee by force. Even if military authorities determined that a statement was "derived with coercion," they could decide to use it on the basis of its "value" to the case.

Civil liberties groups interpret that clause as an unprecedented congressional authorization of torture as an investigative tool.

Chris Anders, legislative counsel with the American Civil Liberties Union, said the authorization also applies to "intelligence" gathered from interrogations in other countries, including "places where torture has been acknowledged and documented."

According to reports by the human rights group Amnesty International, Guantánamo is for many captives the last outpost on a brutal itinerary of arbitrary detention. One Ethiopian national, for instance, recalled undergoing torture in Pakistan, Morocco, and Afghanistan over a two-year period before landing at Guantánamo, where he recently went on a hunger strike to protest his detention.

Anders told TNS that on balance, while the legislation provides some official recognition of detainee rights through the McCain amendment, "the fact that the government is authorizing… behavior that is against everything the Constitution of the country stands for, is why it’s such a significant step backwards."

Giving with One Hand…

Defending the amendment he co-authored, Sen. Graham argues that granting terror suspects access to civilian courts would disrupt crucial investigations. In a statement following the Senate’s initial approval of his proposal in November, he said, "It is not fair to our troops fighting in the war on terror to be sued in every court in the land by our enemies based on every possible complaint."

But critics point out that of several hundred Guantánamo prisoners, it remains unclear how many are actual "enemies." Only a handful have actually faced formal criminal charges, and none has been convicted. Most legal activity surrounding the detentions has related to detainees’ rights and the conditions of confinement – not alleged terrorism and not lawsuits aimed at soldiers or agents.

Noting that some "enemy combatants" have been held incommunicado for years, Agrast of the Center for American Progress said, "If these people ever had intelligence value, they certainly have none anymore."

Daskal of Human Rights Watch argued that while officials claim to be minimizing interference with anti-terrorism operations, "shutting down abusive practices should be interference that we as a nation are willing to accept."

Nonetheless, Paul Rieckhoff, founder of the Iraq and Afghanistan Veterans Association, an advocacy organization for soldiers, called the McCain amendment "a net gain" – at least as a political maneuver.

"We’ve finally got the country talking about whether or not torture’s a good thing," he said, "and that’s a major sea change from what we had after 9/11."

But to groups that have long advocated for the protection of detainees, the government’s motion to ban torture remains largely confined to political symbolism.

Ratner commented: "This administration does not want any judicial oversight of anything it’s doing in its so-called ‘war on terror’… Congress so far, unfortunately, has willingly complied with letting them do that."

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The NewStandard ceased publishing on April 27, 2007.

Michelle Chen is a staff journalist.

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