Damn you, John McCain
I said the weasel words he allowed into the amendment made it worse than toothless, but rather a Potemkin Village in the law.
Later on Jan. 2, 2006 I said we'd need heaven's help because the signing statements of the president were a claim that torture wasn't really made illegal by this piece of legislation, if the president decided it needed to be done.
Today the Washington Post gives me confirmation of the latter.
Bush administration lawyers, fighting a claim of torture by a Guantanamo Bay detainee, yesterday argued that the new law that bans cruel, inhuman or degrading treatment of detainees in U.S. custody does not apply to people held at the military prison.
In federal court yesterday and in legal filings, Justice Department lawyers contended that a detainee at Guantanamo Bay, Cuba, cannot use legislation drafted by Sen. John McCain (R-Ariz.) to challenge treatment that the detainee's lawyers described as "systematic torture.
One of the things I decried about McCain's amendment was that it looked to me as if it made it impossible for someone who was tortured to do anything about it, because the administration said the law gave "no right of personal action."
Government lawyers have argued that another portion of that same law, the Detainee Treatment Act of 2005, removes general access to U.S. courts for all Guantanamo Bay captives. Therefore, they said, Mohammed Bawazir, a Yemeni national held since May 2002, cannot claim protection under the anti-torture provisions.
I hate being right like this.
"These allegations . . . describe disgusting treatment, that if proven, is treatment that is cruel, profoundly disturbing and violative of" U.S. and foreign treaties banning torture, Kessler told the government's lawyers. She said she needs more information, but made clear she is considering banning the use of larger nasal-gastric tubes and the restraint chair.
In court filings, the Justice Department lawyers argued that language in the law written by Sens. Lindsey O. Graham (R-S.C.) and Carl M. Levin (D-Mich.) gives Guantanamo Bay detainees access to the courts only to appeal their enemy combatant status determinations and convictions by military commissions.
"Unfortunately, I think the government's right; it's a correct reading of the law," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "The law says you can't torture detainees at Guantanamo, but it also says you can't enforce that law in the courts."
Thomas Wilner, a lawyer representing several detainees at Guantanamo, agreed that the law cannot be enforced. "This is what Guantanamo was about to begin with, a place to keep detainees out of the U.S. precisely so they can say they can't go to court," Wilner said.
This is what we want to be? Are we so scared of what someone might do to us that we will create our own Chateau D'If, and drop people in it, forever, even when we know some of them to be innocent?
I hope not.