The Key to the Courthouse Door, Part II

(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.

Comments

[am]

"Most of the evidence of abuse at Guantanamo has emerged from lawyers' discussions with their clients"

There you go again.

These are *allegations*, not evidence.

You are a person who describes allegations made by terrorists as "evidence" because you find it politically useful. You know the damage which such allegations have caused and will continue to cause and you gleefully further it.

You're not that gullible. You're not that credulous. Yet you do it.

Shame upon you.

[Jesurgislac]

am, if you think that all the prisoners held in Guantanamo Bay are terrorists, and that therefore none of their statements can be true, you are being very credulous indeed.

Further, the allegation that all of the prisoners are terrorists, and their experience of torture (however much it resembles other experience of torture committed by the US military, documented at Abu Ghraib and elsewhere) must be untrue is also a political allegation.

(Has it been established as a phrase: "Rovian argument" - to accuse others of what you yourself are guilty of?)

[bob mcmanus]

No Justice at Guantanamo

TalkLeft citing an article by two defense lawyers saying Rasul has essentially ignored, delayed, circumvented.

"Almost a year and a half after the Rasul ruling, not a single one of the more than 500 men and boys still held in abysmal conditions of confinement in Guantánamo has seen the inside of a U.S. district courthouse...."
...
Charleycarp does some very good work explaining the most basic process of American Law over at Crooked Timber:

Magna Carta Trashed

The good stuff by CC starts at about #74. A reasonable conversation with "rd"

If you start at the beginning you can follow my customary descent from reasonableness into madness. It is embarrassing but I am not really sorry. I am very grateful that there are stronger, more self-controlled people than myself working on this.

I am crying myself to sleep tonight. Grief and gratitude, I suppose.

[Gary Farber]

"Most of the evidence of abuse at Guantanamo has emerged from lawyers' discussions with their clients"

Let's note that the word there is "abuse," not "torture." So that's what's under contention at the moment: abuse at Guantanamo, not torture.

You are a person who describes allegations made by terrorists as "evidence" because you find it politically useful.

FBI agents aren't terrorists, are they?

Agents of the Federal Bureau of Investigation observed what went on in Guantánamo. One reported on July 29, 2004: "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more."

Time magazine published an extended article last week on an official log of interrogations of one Guantánamo detainee over 50 days from November 2002 to January 2003. The detainee was Mohamed al-Kahtani, a Saudi who is suspected of being the planned 20th hijacker on Sept. 11, 2001, but who was unable to enter the United States.

Mr. Kahtani was interrogated for as long as 20 hours at a stretch, according to the detailed log. At one point he was put on an intravenous drip and given 3½ bags of fluid. When he asked to urinate, guards told him that he must first answer questions. He answered them. The interrogator, not satisfied with the answers, told him to urinate in his pants, which he did. Thirty minutes later, the log noted, Mr. Kahtani was "beginning to understand the futility of his situation."

Are the FBI agents and logs terrorists? Or what?

Remember that we're talking "abuse," not "torture"?

Air Force Lt. Gen. Randall Schmidt:

U.S. Guantanamo Bay interrogators degraded and abused a key prisoner but did not torture him when they told him he was gay, forced him to dance with another man and made him wear a bra and perform dog tricks, military investigators said on Wednesday.

The general who heads U.S. Southern Command, responsible for the jail for foreign terrorism suspects at the U.S. naval base at Guantanamo Bay, Cuba, also said he declined to heed his investigators' recommendation to punish a former commander of the prison camp.

A military report presented before the
Senate Armed Services Committee stated the Saudi man, described as the "20th hijacker" slated to have participated in the Sept. 11, 2001, attacks on America, was forced by interrogators to wear a bra and had women's thong underwear placed on his head.

U.S. interrogators also told him he was a homosexual, forced him to dance with a male interrogator, told him his mother and sister were whores, forced him to wear a leash and perform dog tricks, menaced him with a dog and subjected him to interrogations up to 20 hours a day for about two months, the report said.

Air Force Lt. Gen. Randall Schmidt, who headed the probe into FBI accounts of abuse of Guantanamo prisoners by Defense Department personnel, concluded that the man was subjected to "abusive and degrading treatment" due to "the cumulative effect of creative, persistent and lengthy interrogations." The techniques used were authorized by the
Pentagon, he said.

The man was not named during the hearing, but the Pentagon identified him as Mohamed al-Qahtani.

[...]

Army Gen. Bantz Craddock, who as head of Southern Command oversees Guantanamo, said he rejected the recommendation by Schmidt and his fellow investigator Army Brig. Gen. John Furlow that Army Maj. Gen. Geoffrey Miller, the prison's commander at the time, be formally admonished for failing to properly monitor and limit the interrogation of that prisoner.

[...]

The investigation, announced in January, followed the release by the
American Civil Liberties Union of FBI documents describing alleged prisoner abuses by Defense Department personnel at Guantanamo. The documents were obtained by court order under the Freedom of Information Act.

The FBI documents described prisoners at Guantanamo being shackled hand and foot in a fetal position on a floor for 18 to 24 hours, and left to urinate and defecate on themselves. Others said Pentagon interrogators impersonated FBI agents at the base and used "torture techniques" on a prisoner.

Lt. Gen. Randall Schmidt: terrorist? Gullible liberal?

You may not be as deeply informed about prisoner issues if you believe that people are giving credibility to detainee statements, and that that's what all the fuss is about. It's not. It's about what U.S. personnel and investigators say.

Sean Baker was a United States Army MP; he isn't also a terrorist, is he?

Etc., and so on. Perhaps you might like to engage in discussion of specific issues, rather than mindread people you don't know, and accuse them of moral failings for beliefs they don't have based upon things they've not said.

Or perhaps not. We'll see.

[Gary Farber]

Oopsie. Lost one /blockquote. It should read:

Thirty minutes later, the log noted, Mr. Kahtani was "beginning to understand the futility of his situation."

Are the FBI agents and logs terrorists? Or what?

Sorry.

[Gary Farber]

And just to get it out of the way, in case it might come up, please do keep in mind that if you want to suddenly switch accusations to some variant of "oh, well, that's not torture, and that's a defensible way to treat terrorists, after all," that a) we already established that we're talking about "abuse," not "torture," and b) that would be entirely switching the topic. To put it simply, you need to either defend your accusations and calumny, AM, or kindly withdraw them. Switching topics or goalposts would be admitting you couldn't do that (and there's no shame in that!), so I'm sure that's not what you'll do.

[Gromit]

I'm not well-versed on the finer points of law, but aren't allegations "evidence"? Are the courts prohibited from considering them when rendering judgment?

If I'm correct, am is confusing "evidence" with "proof".

[bob mcmanus]

"I'm not well-versed on the finer points of law, but aren't allegations "evidence"?"

As I understand it, my saying John Wilkes Booth shot Lincoln or Saddam ordered the death of Kurds will usually be hearsay, and inadmissable.

Saying I saw JWB shoot Lincoln is a statement of fact, not an allegation. I could be lying or mistaken. If a Gitmo prisoner says he was tortured, it is not an allegation. If his lawyer says his client was tortured, based in what was related to him, it is an allegation.

[Gromit]

I just thought an "allegation" was an unproven claim of wrongdoing. I understand that not all allegations will be considered admissible evidence, but in this case we are clearly talking about first-hand accounts. Wouldn't those be considered evidence? Isn't eyewitness testimony "evidence"?

[LizardBreath]

Bob, you're confused about the meaning of the word 'allegation'. All it means is a fact that someone says is true, usually about the wrongful acts of another person. It has a perjorative overtone, in that if you call something an allegation you imply that there is no better evidence for it than the statement of the person making the allegation, but that's an overtone, rather than part of the definition.

Saying I saw JWB shoot Lincoln is a statement of fact, not an allegation. I could be lying or mistaken. If a Gitmo prisoner says he was tortured, it is not an allegation.

Both of these are allegations. Allegations are evidence, sometimes persuasive, sometimes not, sometimes admissible in court, sometimes not, but there isn't a systematic distinction between 'allegations' and 'eyewitness evidence'.

[Gary Farber]

"perjorative"

You'd likely catch that if it were in a brief (just trying to help prevent it showing up in future; this is not a Personal Attack, he said on apparently necessary general principles).

[LizardBreath]

Copy-edit to your heart's content -- my spelling's generally ghastly, and it's gotten worse in the years since MS Word has started automatically correcting common errors.

[Gary Farber]

"...it's gotten worse in the years since MS Word has started automatically correcting common errors."

Never for a moment since non-human spell-checkers arrived have I doubted that they are the work of Satan.

The only reason to turn one on is to disable one's own porf-reader, and wind up with numerous properly spelled words that are the wrong words. (Hey, this argument works for Jes, right? :-))

[LizardBreath]

A kibitzer points out that I was hasty and therefore inaccurate in my last post. This sentence:

Allegations are evidence, sometimes persuasive, sometimes not, sometimes admissible in court, sometimes not, but there isn't a systematic distinction between 'allegations' and 'eyewitness evidence'.

would better have read:

Allegations are statements, sometimes supported by persuasive evidence (such as the personal knowledge of the allegor), sometimes not, sometimes provable in court, sometimes not, but there isn't a systematic disjunction between 'allegations' and 'statements supported by good evidence, including by the testimony of the allegor'.

[Barry]

"am, if you think that all the prisoners held in Guantanamo Bay are terrorists, and that therefore none of their statements can be true, you are being very credulous indeed."

am ain't credulous. By now, the weight of the evidence is that anybody professing to believe the adminstration isn't honest; they support Bush's right to torture anybody he wants to.

I've given up on this, after reading John Cole's latest sh*t (http://www.balloon-juice.com/?p=6048 and http://www.balloon-juice.com/?p=6047). I'll accept that certain people are deluded, but it's delusion, as in detachment from reality/ignorance. There is no other side on these issues worthy of respect.