Congress Would Allow Evidence Obtained by Torture
December 16, 2005
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.
Tom Malinowski, Washington advocacy director at Human Rights Watch

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.

After months of opposition, President Bush yesterday accepted Senator John McCain’s amendment banning the use of cruel, inhuman and degrading treatment by U.S. personnel anywhere in the world, and prohibiting U.S. military interrogators from using interrogation techniques not listed in the U.S. Army Field Manual on Intelligence Interrogation.

But 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.

“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.”

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.

Human Rights Watch also remains concerned that the administration has not disavowed certain abusive interrogation methods, such as “water boarding,” a form of mock execution.

“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.