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Roger Fitch Esq
22 December, 2005  
Our Man in Washington

The law lords have come out against torture evidence extracted abroad. What’s wrong with those spineless Limies? In Washington the Senate and the Pentagon are busy coming up with exciting new schemes to counter the McCain amendment so that the torture chambers can keep up the great work

It’s nearly official. Notwithstanding the brand new decision of the Law Lords banning torture testimony, the impassioned pleas of the US legal profession, and the hair-raising stories of lawyers who have visited Guantanamo – and with invasion and rebellion nowhere in sight – Congress is very close to suspending habeas corpus, and blessing torture evidence, if not torture itself.

A joint house committee has been considering amendments to a defence spending bill which, it was claimed, would end the use of torture, sorry, enhanced interrogation techniques, as a tool of the Bush administration. However, the result of the conference committee’s work is far worse than what we had before – as many legal writers are now reporting.

imageThe Congress seems likely to pass the “McCain Amendment” – no longer opposed by Bush – that requires the administration to follow only the procedures in the US Army Field Manual, in “interrogating” prisoners.

But not surprisingly, the Pentagon is rushing through a classified Addendum to the Field Manual that will apparently override the restrictions.

All this begs the question, how can the interrogations occur at all if the detainees have not had their PoW claims considered.

As Marty Lederman notes in his 16 December 16 post on Balkinization:

“If … the Addendum specif[ies] that the Field Manual permits the extreme techniques employed at GTMO … then it would follow that the military may use these techniques on any detainees, including POWs, anywhere in the world, in any conflict.”

The Washington Post went further: “In protecting its ability to use these odious [interrogation] techniques … the administration has adopted logic that accepts, in principle, the idea that the FBI could constitutionally use them on US citizens…”

In addition to the McCain Amendment’s torture prohibition, there is also, as I reported in November, a “court-stripping” amendment to the same spending bill, proposed by two senators, one of whom – I’m sorry to say – is a Democrat.

The language of the Graham-Levin amendment threatens to foreclose habeas corpus proceedings for the Guantanamo detainees, and even abort existing cases now moving through the DC courts.

The proposal has been revised, but the latest version of the amendment, aside from its restrictions on habeas, is even more alarming.

In fact, the disingenuous tinkering of the Senators seems to actually authorize torture by the back door. That’s the view of Scott Horton, chairman of the international law section of the New York City Bar. He famously advised a imagegroup of JAG lawyers who early on decided to oppose the Pentagon’s plans for “presidential” military commissions in Guantanamo Bay. According to Horton’s 15 December post, also on Balkinization:

“Under strong pressure from the White House, it is now being said that Senators Graham, Warner and Levin (pic) have agreed to – or are close to agreeing to – this language:

‘Consideration of statements derived with coercion –
(1) Assessment – The procedures submitted to Congress pursuant to subsection (a)(1(A) shall ensure that a CSRT, ARB or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall to the extent practicable assess –
(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and
(B) the probative value (if any) of such statement.’

If adopted, this language could be viewed as acceptance of the Rumsfeld view that there is no prohibition per se on the use of evidence extracted by torture or other highly coercive means. In the history of the American Congress, this would mark its first acceptance of torture as a technique and blessing on the use of its fruits.

Coming after an 18-month public debate over torture policies at the end of which a solid consensus has formed against the Administration’s viewpoint, this would be a shocking result. It is made even more shameful by comparison with the decision of Britain’s highest court, handed down just one week ago, reaffirming the ban on the use of torture-extracted evidence as a legal absolute.”

So, even if the McCain amendment adds any protection against torture, the Graham-Levin amendment will almost certainly take it away. The New York Times headlined the story, Lawmakers Back Use of Evidence Coerced from Detainees.

Torture will be illegal – it always was – but the fruits of it will be allowed. That’s also the conclusion reached by Joanne Mariner in FindLaw’s Writ.

Moreover, if you can’t use habeas to expose it, there is no remedy for the wrong, not if you happen to be a “presidentially” declared “enemy combatant”. This manufactured category has included American citizens, eg Yaser Hamdi (since released) and Jose Padilla, who aren’t covered by the “order” establishing “presidential” military commissions.

There may be others we don’t know about, and it seems the Justice Department regularly threatens to make people “enemy combatants” when they don’t roll over in civilian trials (eg, Al Marri, Abu Ali).

The possible use of evidence obtained under torture is no mere hypothetical in the US today. The Bush Administration is actively seeking the power to use it and may be preparing to use it in the new proceedings against Padilla, once a “dirty bomber” and “enemy combatant”, now a defendant in a civil court indictment.

The evidence against Padilla seems to have been obtained from three people: Khalid Shaikh Mohammed, the “architect” of 9/11; Binyam Mohammed Al-Habashi, an Ethiopian in Guantanamo who has now been “charged” in one of the new batch of military commissions; and Jose Padilla himself.

The statements of all three would be open to attack as having been obtained under coercion, if not torture. CIA sources are now saying that Sheik Mohammed was successfully “waterboarded”, and CNN reports that the Ethiopian may also have been tortured.

For three years, Padilla has been prevented from telling his side of the story. He recently lost in the Fourth Circuit Court of Appeals after winning in the Court of Appeals for the Second Circuit (NY) and in the South Carolina District Court, following a procedural remand from the Supreme Court. He could win in the Supreme Court, as there are five votes for him there, as I’ll explain another time.

The government changed tack, indicted Padilla on different allegations and asked the Fourth Circuit approval for his transfer to civilian jurisdiction. The Bush administration is also seeking to prevent the Supreme Court’s review of his military detention, on the basis of mootness, although Padilla remains an “enemy combatant”.

The Supplemental Brief that Padilla’s lawyers lodged in the Fourth Court of Appeals brilliantly describes the machinations of the Justice Department seeking to prevent Padilla having his day in court.

On December 21, the Court of Appeals denied both the transfer to civilian custody and the motion to withdraw the court’s opinion, so the odds have improved that the Supreme Court will grant certiorari.

How will all this affect David Hicks? The Graham-Levin amendment, if passed in its present form, will kill all hope of a collateral attack in Washington against the “presidential” commission in Cuba, although that right of attack, habeas corpus, is the very entitlement that the Supreme Court gave Hicks, directly and personally, in the Rasul decision 18 months ago.

Hicks will have to rely on the kindness of strangers: the British government. The citizenship decision in his favour in the English High Court, by the way, is worth reading.

Ironically, on the very day that the Congress appeared to have legitimised torture, George W. Bush admitted that he had authorised surveillance of Americans without seeking a court order.

And how was this reported? In one of its most glorious understatements, The Washington Post headline declared: “Bush’s Fumbles Spur New Talk of Oversight on Hill.”

I don’t know the terminology of Australian football but in gridiron a fumble is a clumsy mistake. It’s not a metaphor in American English for illegal conduct, or possibly an impeachable offence.

In other news this week, it was revealed that the president had called the US constitution “just a goddamned piece of paper” in one of his Oval Office tirades before alarmed aides.

As one writer noted, this is further proof of our president’s ignorance: everyone knows that the constitution is written on parchment.