Wow, a real outrage moment. My fury and disappointment knows no bounds, embracing the Congress, media and human rights groups.
While all of the above wasted their time and energy trumpeting the McCain amendment on the treatment of detainees - on which a little more below - no one took the time to notice what Senator Lindsey Graham of South Carolina was pushing through.
, intended to stop what this fine senator believes to be frivolous lawsuits brought by those detainees at Guantanamo with nothing better to do, not only passed Congress, but also garnered the support of one Carl Levin, the Democratic senator from Michigan.
The amendment was attached to the big defense spending bill that has been bouncing to and fro in Congress in the last few weeks and has now passed, awaiting only Bush's signature.
I barely know where to start here. The amendment originally intended to prevent detainees from any access to U.S. federal courts. With the involvement of Levin, it now allows those detainees access in two, TWO circumstances only. The key passage reads as follows:
" No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States (as that term is defined in section 101(a)(38) of the Immigration and Naturalization Act (8 U.S.C. 1101(a)(38)) who is detained by the Department of Defense at Guantanamo Bay, Cuba.'."
The amendment goes on to provide detainees access in the following two circumstances:
1) In order to challenge the findings of a Combatant Status Review Tribunal. These are the tribunals set up to determine whether a detainee is an enemy combatant, POW, or goatherder accidentally swept up or handed over to the U.S. for cold hard cash.
The detainee may appeal the CSRT on two points:
a) On whether the procedure the CSRT is supposed to follow has been followed and,
b) On whether that procedure is constitutional and legal as applied to an "alien enemy combatant"
2) In order to appeal the final ruling of the military tribunal 'trying' the detainee. Jurisdiction for this type of review is available in two circumstances:
a) If the detainee is sentenced to a sentence of 10 years or more
b) At the court's discretion.
Hopefully, it's instantly clear that this amendment is abominable. The rationale behind it is disturbingly illustrated by the language Graham uses in his official statements about the legislation, which can be found on his website's press releases page
Bear in mind, as you read these that none of the detainees have been tried, even before the kangaroo courts of a military tribunal the Defense Department has established to hear the cases. The status of some remains unclear, not withstanding Bush's comments about them being the worst of the worst and unilaterally declaring them enemy combatants. Just today, the Washington Post reports
that the continued detention of two ethnic Uighur men at Guantanamo is "unlawful," but that they must remain there because they will face persecution if returned to China, no third country will accept them and the judiciary does not have the power to force U.S. immigration to offer them asylum. The point? Not everyone, by a long shot, at Guantanamo is remotely proven to have any links to terrorism. And, indeed, some explictly do not.
With that in mind...
"The detainees at GTMO are not American citizens facing criminal trial, rather, they are terrorists who have taken up arms against the United States," says Graham
"Currently, over 160 cases have been filed by terrorists suing our own troops over every action taken," Graham asserts. Graham's own website lists examples of some of this "legal abuse" such as cases where detainees "have questioned the legality of their detention, propriety of returning a detainee to their home country, and allotment of exercise time."
Appalling. How dare these men, nay these terrorists, try and gain access to a legal system, any legal system, to force an explanation of why they have been held for years on end? What do they think gives them the right to request information about what they are being charged with? Indeed, it shocks the senses to hear that some are challenging being returned to countries where government routinely torture those in any way, falsely or otherwise, connected to terrorism...These countries, including Egypt, are U.S. friends in the war on terror. The U.S. even 'renders' folks over to these places, what possible right then could GTMO detainees have to challenge being sent to these places, tainted by association because of their years-long detainment.
Graham gives other examples of these lawsuits, including:
"* "Motion for PI re Medical Records" -- Motion by detainee accusing military's health professionals of "gross and intentional medical malpractice" in alleged violation of the 4th, 5th, 8th, and 14th Amendments, 42 USC 1981, and unspecified international agreements."
All of these sorts of cases will now, I almost wrote would - as though this hadn't already been allowed to pass into law, be prevented from reaching U.S. courts.
But don't worry, Graham's website reassures us: "* The amendment only applies to NON-CITIZEN TERRORISTS."
GTMO, where black is white, up is down and guilt is presumed until innocence proved.
But my outrage, as I mentioned above, is not limited to the Congress for passing this. Others deserve criticism too. In recent weeks and months, Human Rights First and other civil liberties organizations have bombarded me with emails urging me to call my representatives (not being a U.S. citizen I don't actually have any...) to ensure they support the McCain amendment. And that amendment has garnered headlines, top stories and print inches all over the place, perhaps rightfully you might think.
Sadly, much as I support any effort to end, minimize, crack down on torture and associated abuse, the McCain amendment is little more than an impotent restatement of preexisting U.S. law and obligations.
The abuse and torture perpetrated by U.S. forces and personnel occured not because U.S. law permitted it, but because U.S. law was ignored or interpreted in such a way that it was rendered useless. The McCain amendment is a nice piece of legislation that simply says "we think torture is bad, we won't do it." It does not add anything new. Under normal circumstances, despite its relatively toothless nature, I would support the measure and not mind the general fanfare surrounding it. But in this case, that fanfare has served to detract from the more serious issue at hand - the Graham amendment,
And the source of that fanfare, in no small part, has been groups like Human Rights First. Partly as a result, there has been scant attention paid by the media to the Graham amendment and its impact. All this despite the Supreme Court's grant of certiorari in the Hamdan case on the constitutionality of the military tribunals detainees will face.
This is beyond belief - incredibly important issues about the legitimacy of these individuals' detention and the trial process they face could never go before a court - and the media is silent, and the human rights groups are silent.
While advocacy groups seem to have failed in their role to get issues like this into the public eye, the media should take its fair share of blame. Sometimes I am ashamed of my profession - is this the best we can do?
Edit -- 01/12/06
Levin's addition to the amendment apparently means that Guantanamo cases already before the courts will still be heard, meaning the Supreme Court will hear in March the Hamdan challenge to the legitimacy of the military tribunals established to try Guantanamo detainees. I imagine this is the 'victory' achieved by Levin's support for the bill. It strikes me as rather paltry, particularly given that the military tribunals began hearing cases yesterday, in spite of the pending Supreme Court case. I suspect also that less attention paid to the McCain amendment and more Democratic effort focused on the Graham amendment might have elicited a better deal overall