Defense Bill Wipes Out Most Habeas for Detainees

A few weeks ago I wrote that John McCain's torture amendment, included in the defense authorization bill passed by Congress, would be severely undercut by the Levin-Graham-Kyl amendment, which grants a license to use coercive techniques, particularly on detainees at Guantanamo, by denying them access to the courts to seek redress. In other words, the McCain Amendment says one thing and the Levin-Graham-Kyl Amendment another.

The Washington Post today has more:

...the measure awaiting President Bush's signature also would limit the access of detainees held at the U.S. prison at Guantanamo Bay, Cuba, to federal courts. And it would allow the military to use confessions elicited by torture when deciding whether a detainee is an enemy combatant.

That's because the Levin-Graham-Kyl amendment prevents the detainees from seeking judicial review of anything but their initial designation as an enemy combant and a review of any military tribunal conviction. There is no way for them to challenge the conditions of their confinement, even if it amounts to torture.

450 Law professors signed a letter (pdf) asking Congress to repeal the Levin-Graham-Kyl Amendment from the defense authorization bill.

...The Graham-Levin-Kyl Amendment opens a backdoor to torture: It would permit the CIA to cooperate with foreign intelligence services that we know use torture to extract evidence through coercion. That evidence would then be available as a basis for detention decisions.

“Congress is taking with one hand what it has given with the other,” explained Mr. Waldman. Never before in American history has a Congress put its stamp of approval on the use of physically coerced testimony to make decisions between liberty and imprisonment. Even in past times of war, this practice has no precedent.

“This bill will not put an end to physically coercive interrogation tactics that yield unreliable information, cautioned Professor Burt Neuborne, legal director of the Brennan Center and Inez Milholland Professor of Civil Liberties at NYU School of Law, “But it will erode our moral standing in the world community and subject our troops to almost certain reprisals in the future.”

Six retired federal judges wrote this letter (pdf) asking for the Amendment to be removed from the bill.

Joanne Mariner has more here.

The passed bill is awaiting Bush's signature.

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  • Nat Hentoff also has this covered:
    Tom Wilner, a constitutional lawyer who represents a number of Kuwaiti detainees (a/k/a prisoners) at Guantánamo, gets to the chilling core of the amendment: "This amendment [which McCain has approved] tears the heart out of anything good that the McCain prohibition [against cruel, inhuman, and degrading treatment] does. It strips the right of habeas corpus from detainees at Guantánamo, prohibits them from suing U.S. officials for their treatment, and in new language slipped into the bill [during the House-Senate conference committee sessions] actually authorizes the tribunals at Guantánamo [for enemy combatants] to use statements obtained through coercion [including torture] as 'probative' [testimony]. ....