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November 15, 2005

Fascism Watch: Stop The Graham/Bingaman Amendment

-- by Gary Boatwright

MIchael Froomkin at Discourse.net has a terrific summary of the yeoman's work that hilzoy and Katherine have done at Obsidian Wings: (click through for links)

Was Sen. Graham Intentionally Misleading or Was He Deceived?:


About Them: Setting the scene, outline of Sen. Graham's sensational charges about litigation abuse by detainees.

Medical Malpractice: Initial attempt to refute Graham's claim of litigation abuse; relies on general facts we know about medical abuse in Guantánamo.

Medical Malpractice 2: Specific and detailed refutation of Sen. Graham, reporting the actual known facts regarding one of the two cases he himself cited as most supporting his claims: the prisoner claims "as a result of his detention at the U.S. military prison at Guantánamo Bay, he is now confined to a wheelchair with two broken vertebrae. He said military personnel and interrogators stomped on his back, dropped him on the floor and repeatedly forced his neck forward soon after his arrival at the prison." The so-called malpractice claim is that "he has been denied an operation that could save him from permanent paralysis".

Medical Malpractice 3: Contains further allegations about other prisoners at Guantánamo who were refused basic medical treatment in order to coerce their cooperation, all drawn from a legal brief filed to contest medical mis-treatment. As hilzoy and Katherine note, "bear in mind that none of this information would be available if Graham's amendment had already been in force".

Caught On The Battlefield: Sen. Graham argued that one reason to deny judicial review is that detainees are people "caught on the battlefield as the Nazis were caught on the battlefield". This post demonstrates that there is vast and persuasive evidence that a number of the people held in Guantánamo were not caught in even the same country as any battlefield.

Competent Tribunals: Sen. Graham describes the Guantánamo tribunals as "the Geneva Convention Protections on Steroids". As readers of this blog know, it's no such thing.

Family Videos: Sen. Graham lampooned the courts for entertaining claims that Guantánamo detainees should be shown "family videos". Here's the actual, and quite horrible, story: Detainees reported that interrogators had previously impersonated defense counsel as a ruse to get detainees to talk to them; as a result the detainees mistrusted their actual lawyers.


Call and email your Senator. Tell them you expect them to object to unanimous consent unless the Graham/Bingaman Amendment is withdrawn.


The Key to the Courthouse Door, Part I: or. What Habeus Corpus Is And Isn't.:

I don't think Graham is genuinely confused about this point. As a JAG lawyer he must know that habeas is not synonymous with civilian criminal trials. I don't know that he was actively trying to mislead people about it; it may only be that he thought it made good rhetoric. But whatever his intent, I think he has misled several other senators into thinking that the question is whether the Guantanamo detainees will be tried by a military trial of some sort (a court martial, a military commission, or what have you) or as civilians under U.S. criminal law.

The Key to the Courthouse Door, Part II: or, Why the McCain Amendment is No Substitute

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.


Closing Statement

Why on earth is this being pushed through on an appropriations bill, with no hearings, no debate, on the strength of arguments that are (deliberately or inadvertantly) quite misleading? When the Senators providing the margin of victory seem unaware of some key facts and of the legal implications of what they're doing? We're talking about habeas corpus here. We're talking about indefinite detention under conditions that have prompted a large number of suicide attempts. We're talking about serious charges of abuse. We're talking about human beings, some of whom are terrorists and some of whom aren't--some of whom even the pathetic CSRT process has determined are innocent. Could we maybe wait a few weeks, hold a hearing or two, have some real negotiations?

Call and email your Senator. Tell them you expect them to object to unanimous consent unless the Graham/Bingaman Amendment is withdrawn.

Posted by Gary Boatwright at November 15, 2005 5:03 AM

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