Tortured logic

A lot of heat is being directed at U.S. Sen. Carl Levin for his role in proposed legislation that critics say would deprive prisoners held by the United States at Guantanamo Bay, Cuba, of basic constitutional protections.

Levin, a Michigan Democrat, finds himself in the unenviable position of defending a measure that he’s co-sponsoring but doesn’t fully support.

At issue is the so-called Graham-Levin-Kyl amendment to a key defense authorization bill that passed the House of Representatives on Monday. Primarily written by Sen. Lindsey Graham (R-S.C.), the amendment, as described in a New York Times article, would “enable the government to keep prisoners at Guantanamo Bay indefinitely on the basis of evidence obtained through coercive interrogations.”

Attorney Bill Goodman, legal director for the Center for Constitutional Rights, tells News Hits that coercive interrogation is “just a nice term for torture.”

Writing for the online publication Slate, senior editor Emily Bazelon described the potential ramifications of the amendment this way: “[W]hen a Guantanamo detainee gets his moment in court, or the closest thing to it, to which he’s currently entitled, he can claim that he hasn’t fought against the United States, doesn’t belong to al-Qaida, and should be allowed to go home. And then the government lawyers on the other side can say, ‘Actually, you are an al-Qaida member. We think so because another guy said you were. We asked him about you right before we made him think he would suffocate if he didn’t say what we wanted to hear.’”

If the amendment passes, writes Bazelon, “we will have both parties to thank for putting on the record that the United States is a country that locks people up based on testimony obtained by torture that they don’t know about and can’t challenge.”

Part of the twisted irony of all this is that another amendment to the same bill — this one authored by Sen. John McCain (R-Ariz.) — outlaws the use of “cruel, inhuman, or degrading” treatment of detainees in American custody anywhere in the world.

Critics say passage of Graham-Levin-Kyl would, in effect, remove Guantanamo from that protective umbrella.

But it goes further than that. It has to do with a foundation of law that dates back to the Magna Carta in 1215, and has been part of the legal foundation of this country throughout its history. At issue is the writ of habeas corpus, which mandates that those accused of crimes have the right to be presented with the evidence being used against them, and to have that evidence reviewed by a judge. Although Graham-Levin-Kyl provides for the eventual review of tribunal actions by the U.S. Court of Appeals in cases where sentences of 10 years or more are handed down, “it is basically a rubber stamp of a rubber stamp,” Goodman says. “There is virtually no representation for a person accused of being an enemy combatant. It certainly doesn’t grant the scope of review available under a traditional writ of habeas corpus.”

What does Levin have to say about all this? Basically that all he’s done is try and take a bad law and make it better.

“Administration officials and their allies in the House have sought at every turn to deny any legal right or recourse to detainees at Guantanamo and elsewhere,” the senator said in a statement released by his office last week. “I do not believe that we should have gone down the road of limiting legal remedies for detainees in the manner that we did. However, we have done our best to preserve a meaningful opportunity for detainees to challenge the legality of their detention in federal court. While we have not succeeded as well as I would have liked, the provision in the conference report does not, in my view, justify opposing a defense authorization bill which includes many provisions needed by our troops in a time of war and the McCain amendment barring cruel, inhuman, or degrading treatment or punishment.”

Goodman has a different take: “If the McCain amendment is one step forward, this amendment would be two steps back.”

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