(or, "Why the McCain Amendment is No Substitute")
(Eleventh in a series arguing against the Graham Amendment/for the Bingaman Amendment regarding habeas corpus at Guantanamo Bay. If you agree, please call your senators, and ask them to vote for Jeff Bingaman's S. AMDT 2517 to bill S. 1042. Senator Graham's full floor speech is here.)
I don't have a specific passage to quote from Graham's speech here. Rather, I am responding to his general claim, that it is all right to take away habeas corpus from the Guantanamo detainees because of the McCain amendment.
Something that first year law students have drummed into them, but which in my experience is not at all intuitive to non-lawyers: that something is illegal doesn't automatically mean a court can do anything about it. There are all sorts of hoops you must jump through before a judge or jury determines what happened, and whether or not any laws have been broken, and what the remedy should be. All these terms which lawyers throw around casually, and which cause our families roll their eyes and wonder what the hell we're talking about: Personal jurisdiction. Subject matter jurisdiction. A cause of action. Standing to sue. Ripeness. Mootness. Justiciability. A waiver of sovereign immunity, if you are suing the government. etc. etc.
Let's not get into what those terms mean. I barely can keep track, because I stupidly didn't take Federal Courts. Let me just reiterate: just because something is illegal doesn't mean a court can do anything about it.
The McCain amendment is about whether torture is illegal. The Graham amendment, though the word "torture" appears nowhere in it, is highly relevant to whether a court can do anything about it. Go back to what that Pentagon official said:
A senior Pentagon lawyer who asked not to be named said that the Graham amendment will have another consequence. The same Pentagon bill also contains a clause, sponsored by Graham and the Arizona Republican John McCain, to outlaw torture at US detention camps - a move up to now fiercely resisted by the White House. 'If detainees can't talk to lawyers or file cases, how will anyone ever find out if they have been abused,' the lawyer said.
Most of the evidence of abuse at Guantanamo has emerged from lawyers' discussions with their clients.
The McCain Amendment states clearly that torture is illegal. And that's a good thing, and I'm glad, and I hope very much that it passes. At the same time, not only does it not make habeas unnecessary; I'm almost sure that it will do less good than the Graham Amendment does harm.
Because here's the thing: the cause of the torture scandal is not a lack of clear statements in U.S. law that torture is illegal. We have loads of them. The Geneva Conventions. The War Crimes Act. The federal assault statute. The Uniform Code of Military Justice. The Anti-Torture Statute. The Convention Against Torture.
The causes are an executive unwilling to comply with those laws in good faith, a Congress that is unwilling to do anything about their violation, and courts that are in many ways unable to do anything about their violation.
The McCain amendment clearly forbids cruel, inhuman and degrading treatment of detainees held anywhere in U.S. custody, even outside the borders of the U.S. But you know what? So did the Convention Against Torture, until John Yoo and David Addington got through with it. Now, it is true that the McCain amendment is more explicit about it, and that is worth something. But the OLC torture memo managed to ignore three separate clauses of the Constitution in its argument that it's probably unconstitutional for Congress to outlaw torture. The Schmidt report recently concluded that the treatment of prisoners at Guantanamo, while sometimes "abusive" and "degrading", was never "inhumane." In the context of rendition, CIA agents say that "you'd have to be deaf, dumb and blind" to believe that Syria won't torture prisoners--and yet the administration somehow believes it. I wouldn't count on them being unable to find a loophole in the McCain amendment.
These arguments would all be laughed out of court, naturally. But here's the thing: these cases don't make it to court in the first place. It's not because there aren't laws against torture that have clearly been violated. It's because we're generally missing all that procedural mumbo-jumbo I discussed in paragraph 2.
A criminal prosecution? The executive has to be willing to investigate and prosecute, and to disclose the classified information necessary to prosecute successfully. The military has proved unwilling to prosecute anyone over a certain rank, and even when it comes to the privates and sergeants, the speed of prosecution and severity of punishment seems to depend partly on the level of publicity the cases receive. The DOJ has prosecuted exactly one CIA contractor. They may have given the green light for many of these techniques, which makes prosecution awkward to say the least. No special prosecutor or independent counsel will be appointed without a sea change in the political situation.
A civil suit for damages? Maher Arar's trying that. The government argues it must be dismissed to protect state secrets, and even without that I don't think he can jump through all of the hoops listed in #2.
This is in top of the more practical difficulties, like evidence being destroyed and it being tough to file lawsuits while you're being held incommunicado.
Habeas has worked, though. It worked for Mamdouh Habib, for Yasser Hamdi, for Abu Ali, for every detainee who got a TRO preventing transfer to a country that faces torture. It is one of the only things that has worked to unlock the courthouse door in torture cases. Graham's amendment threatens to lock the door again. McCain's amendment--which states a bit more slowly, loudly and clearly that we really meant it about that Convention Against Torture thing--is not going to make up for this.