home

McCain Torture Policy Undercut By Amendment

You had to know it was too good to be true. Don't praise John McCain's torture amendment too soon. The Levin-Graham Amendment passed along with it, and it amounts to a license to use coercive techniques, particularly on detainees at Guantanamo:

House and Senate negotiators agreed Friday to a measure that would enable the government to keep prisoners at Guantánamo Bay indefinitely on the basis of evidence obtained by coercive interrogations.

The provision, which has been a subject of extensive bargaining with the Bush administration, could allow evidence that would not be permitted in civilian courts to be admissable in deciding whether to hold detainees at the American military prison in Guantánamo Bay, Cuba. In recent days, the Congressional negotiators quietly eliminated an explicit ban on the use of such material in an earlier version of the legislation.

Human Rights Watch explains:

Even as the U.S. Congress has passed a prohibition against the use of torture and cruel, inhuman, and degrading treatment, it is set to adopt legislation that would strip the judiciary's ability to enforce the ban, Human Rights Watch warned today.

...the legislation containing the McCain Amendment currently includes another provision -- the Graham-Levin Amendment -- that would deny the five hundred-some detainees in Guantánamo Bay the ability to bring legal action seeking relief from the use of torture or cruel and inhumane treatment. And it implicitly authorizes the Department of Defense to consider evidence obtained through torture or other inhumane treatment in assessing the status of detainees held in Guantánamo Bay.

If passed into law, this would be the first time in American history that Congress has effectively permitted the use of evidence obtained through torture.

Here's how it could work:

"With the McCain amendment, Congress has clearly said that anyone who authorizes or engages in cruel techniques like water boarding is violating the law," said Tom Malinowski, Washington Advocacy Director for Human Rights Watch. "But the Graham-Levin amendment leaves Guantánamo detainees no legal recourse if they are, in fact, tortured or mistreated. The treatment of Guantánamo Bay detainees will be shrouded in secrecy, placing detainees at risk for future abuse."

Read on:

These provisions have been added by House and Senate conferees to language that originally passed the Senate as part of the Defense Authorization legislation. The language in the original Senate version already placed new and significant restrictions on Guantánamo Bay detainees' access to federal court. It eliminated the right for detainees to bring habeas corpus claims challenging the legality of their ongoing detention and asserting their innocence. Instead, detainees would be allowed to seek independent court review of their detention at just two points in time -- after their initial designation as an enemy combatant by a Combatant Status Review Tribunal and after conviction by a military commission -- and would be allowed to raise only a very narrow set of claims. They could challenge the procedures and constitutionality of the tribunals and commissions, but would be precluded from seeking an independent review of the factual basis for their detention or conviction.

The new language would expand the prohibition on habeas review to cover all other claims -- making it almost impossible for detainees at Guantánamo to seek relief from torture or cruel treatment.

The original language passed by the Senate also sought to restrict the use of evidence obtained through "undue coercion" by the Combatant Status Review Tribunals. The language approved by conferees would reverse this prohibition. It would require these tribunals to assess the probative value of evidence obtained through coercion, but would not prohibit the use of such evidence.

Another addition redefines the United States to explicitly exclude Guantánamo Bay. This is an attempt to ensure that the constitutional protections -- including the prohibition on the use of evidence obtained through torture --do not extend to detainees in Guantánamo Bay, Human Rights Watch said.

Bottom Line:

"If the McCain law demonstrates to the world that the United States really opposes torture, the Graham-Levin amendment risks telling the world the opposite," said Malinowski.

Lawyer Martin Garbus, writing at Huffington Post, calls it An Incredible Day in America.

< Federal Judge Calls DEA's View of Hemp 'Asinine' | Bush Admits Ordering Secret Wiretaps More Than 30 Times >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Re: McCain Torture Policy Undercut By Amendment (none / 0) (#1)
    by Andreas on Sat Dec 17, 2005 at 01:07:07 PM EST
    The WSWS writes:
    The agreement reached between the Bush White House and Senator John McCain on a measure ostensibly banning torture does nothing of the kind. The official disavowal of “cruel, inhuman or degrading treatment” of alleged terrorists held by the US is a ploy to cover up Washington’s past defiance of international laws banning torture and provide a pseudo-legal cover for the continuation of the same methods.
    McCain-Bush “anti-torture” measure gives legal cover for continued abuse By Joe Kay and Barry Grey, 17 December 2005

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#2)
    by scarshapedstar on Sat Dec 17, 2005 at 01:07:07 PM EST
    I'm with Atrios on this one - it's a fetish. They can't possibly believe torture is this important. These sick SOBs just want to make sure they can get their jollies.

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:07 PM EST
    This administration never ceases to amaze me. They're engaging in so much illegal and unconstitutional conduct that it's almost becoming a ho-hum daily occurrence.

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#4)
    by Edger on Sat Dec 17, 2005 at 01:07:08 PM EST
    Did I miss something here? It was "McCains Compromise" of his own integrity that the CIA not be exempted from the torture amendment that 10 days ago was discussed here that the WH "reluctantly" agreed to. And now Malinowski says “If the McCain law demonstrates to the world that the United States really opposes torture, the Graham-Levin amendment risks telling the world the opposite.” Is this now supposed to cast McCain as a man of principle and integrity being undercut by the Graham-Levin amendment? Or have I not had enough coffee yet this morning to get my brain in gear?

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#5)
    by theologicus on Sat Dec 17, 2005 at 01:07:08 PM EST
    Thanks for this post, and especially for the Garbus article. Very sobering.

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#6)
    by soccerdad on Sat Dec 17, 2005 at 01:07:08 PM EST
    This allows McCain to campaign in 08 on his faux superior morality. In fact there is no principle nor personal insult he will not ignore to keep himself in the front for the race for the whitehouse. This is in fact typical American politics and will be used to trumpet its international moral superiority and defender of human rights. Yet as has been true for much of the country's history, torture and the training of others to perform torture has been integral to the functioning of the government and its foreign policy. One only has to look back on the CIA in SA, Vietnam, and the Phillipines and lets not forget the School of the Americas. So nothing has changed yet again. America has again revealed its true nature. Its becoming clear that a moral America that was strong yet was an example of integrity, honesty and justice to the world was a delusional of my brain.

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#7)
    by mjvpi on Sat Dec 17, 2005 at 01:07:08 PM EST
    no...it's the crime of politics!

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#8)
    by Che's Lounge on Sat Dec 17, 2005 at 01:07:08 PM EST
    "Coercive interrogation"? A torture session by any other name. It's tough to break with tradition (or addiction), so just rename it. Tell me again, who is it that is aiding the terrorists with their anti-american actions?

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#9)
    by The Heretik on Sat Dec 17, 2005 at 01:07:08 PM EST
    McCain and Bush? The slippery slope . . . . it starts with "You scratch my back, I'll scratch yours." . . . Then someone asks for some scratching a little lower . . . and we are left scratching our um heads. More on this at Slipping Into Darkness.

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#10)
    by Dadler on Sat Dec 17, 2005 at 01:07:08 PM EST
    McCain is NOT capable of standing up and genuinely taking care of this issue, which he could if he had the will. He's too much the obedient soldier. He'll go out on a branch, but never a limb. This is all about changing perception, not reality.

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#11)
    by soccerdad on Sun Dec 18, 2005 at 04:28:05 AM EST
    Dear Senator McCain: I wrote you sometime ago concerning the use of torture by American personnel in Iraq. I had written to you because I felt a man of your experience and integrity could see the harm these policies would do to America's reputation and eventually our own soldiers. We are of different parties and differ on many things but I have always held you in very high regard as a man of conviction and personnal integrity. Therefore I was extremely happy to see you fight for your legislation to ban torture under stiff opposition from the White House. I was not surprised at your resolve on such an important issue. It gave me faith again that there were people with high moral principles in Washington. Then the other shoe drops, the Levin-Graham Ammendment. Do you really feel we are all that stupid. I don't want to hear "well you have to compromise" or other such self-serving BS. This was an issue of the greatest importance for it was a chance to show the world America's true character. I guess we have shown the world our true colors. We have shown them that there is no moral principle we will not compromise. I can only wonder about your motivation. I guess this would allow you to run for president on your faux moral superiority while at the same time letting the despicable policies of this administration continue. So much for men of character in Washington. I was hoping that America was better than this, I was counting on you being better than this. So its business as usual, saying one thing and pulling the wool over the eyes of the sheep. Its just another day in the slow steady decline of a once great country toward irrelevance. But I must say, America is a shining beacon of blatent hypocrisy and you can be proud that you did your part. And we wonder why more and more countries question our motives and our influence is on the wan. I guess my cynicism concerning the leadership of this country is indeed well founded. Both parties will go down in history as contributing to America's decline and standing.

    Re: McCain Torture Policy Undercut By Amendment (none / 0) (#12)
    by Edger on Sun Dec 18, 2005 at 05:49:21 AM EST
    Well said, Soccerdad...