Out of the Frying Pan

Over the vigorous opposition of human-rights groups and military leaders, senators passed an amendment to the defense authorization bill last week that purports to limit the rights of detainees held by the United States at its naval base at Guantanamo Bay, Cuba, to challenge in U.S. federal courts the legality of their prolonged detention on the base. According to the amendment's author, Republican Senator Lindsey Graham, the provision -- later amended in a hastily-reached compromise with Democratic Senator Carl Levin -- is intended to limit the amount of litigation filed by U.S.-held detainees that Graham maintains has clogged up the federal courts.

The great irony of this foray into U.S. detention and interrogation policy is that Graham's amendment, passed in its compromise version by the Senate last week, is the best guarantee detainees' lawyers have had for some time that the question of their clients' rights will stick around in federal courts for quite some time. Senator Graham has, admirably, put his finger on a major problem in U.S. policy today: the uncertain legal status of those held in a U.S. detention system that includes thousands of people worldwide. But the senator's amendment makes matters more uncertain, not less so.

Consider the situation. The Supreme Court ruled 6-to-3 last year that Guantanamo Bay was comparable to enough the territory of the United States (the base there being under the “complete jurisdiction and control” of the U.S. government) that U.S. federal courts had the power to hear challenges to the legality of detention from those held there by the United States. Admittedly, the court did not discuss in detail what substantive rights the detainees might have (whether under the Constitution or stipulated by treaties ratified by the United States), or to what process detainees might be entitled (e.g., how much evidence they could submit, what facts the government might be required to prove). But it did remand the case to the Circuit Court of the District of Columbia where, until now, dozens of detainee cases have been consolidated by a court system used to dealing with complex litigation. Issues of substantive and procedural rights have been reviewed and decided on in an orderly manner through lower courts.

In the course of those proceedings, lawyers for the detainees have been granted some minimal access to their clients -- enough to learn that some detainees have been officially cleared by the U.S. government but are still awaiting release and that a growing number of detainees have declared a hunger strike and may now be on the verge of death. What no one until Graham had suggested was that lawyer visits were actually interfering with any ongoing interrogations at the base. On the contrary, by most accounts, few, if any, of the remaining Guantanamo detainees are being interrogated at all anymore. In the face of administrative stonewalling, the courts had been making reasonable headway.

Under Graham's amendment, neither cases pending in lower federal courts in Washington, D.C. nor the case just accepted by the Supreme Court testing the lawfulness of military commission trials will simply end. On the contrary, detainees seeking review of their detentions will amend their requests to conform to new requirements, and the courts hearing those cases will now add to their dockets a whole new set of legal questions. For example, does Graham's amendment apply to cases the courts now have before them, or does it apply only to new cases filed after the date of its enactment? As written, the new rules purport to apply to any claim that is pending on the date of the amendment's enactment. But both Graham and Levin indicated on the Senate floor the day after the bill's passage that this was not their intent at all. Rather, the bill as amended by Levin would apply only to new habeas cases filed after the date of enactment. Either way, should the bill become law, the only institution capable of resolving this question is a federal court.

Or consider Graham's approach to addressing the question of whether any of the existing ad hoc tribunals now underway at Guantanamo may consider evidence against a detainee that was obtained through torture or coercion. Such treatment is currently the subject of another bill pending in Congress, introduced by Senator John McCain, that would reassert and clarify the U.S. ban on torture and cruel, inhuman or degrading treatment of any detainee anywhere. Graham's amendment would prohibit for use in the various novel Guantanamo review boards evidence that was obtained under “undue coercion.” But the term “undue coercion” is, of course, not defined in the amendment itself; nor does the amendment helpfully track legal standards that exist elsewhere in U.S. law -- like “torture” or, clearer still, “cruel, inhuman, or degrading” treatment, as set forth in McCain's legislation, and in well understood U.S.-ratified treaties. So under Graham, can the Pentagon consider evidence adduced under cruel and inhuman treatment or not? The amendment leaves it unclear enough that courts will struggle to apply this language as well.

Legal uncertainty aside, perhaps the greatest irony of Graham's amendment is this: After four years of virtual silence from Congress on the administration's increasingly counterproductive policy of indefinite detention and coercive interrogation -- a system that has yielded new allegations of abuse almost daily, and that has changed, if at all, only in response to the binding orders of the administration's coequal branches of government -- Congress's first action is an attempt to take one of those branches out of the game altogether. From the point of view of correcting U.S. policy, this is a grave mistake.

Only through the Supreme Court's intervention has an apparently innocent U.S. citizen held in solitary detention been set free. Only through the court's intervention have Guantanamo prisoners been afforded any process at all by which to challenge the legality of their detention. Only by dint of court order was the administration compelled to reveal a raft of documents demonstrating that torture and abuse in U.S. facilities were not limited to the actions of a “few bad apples” at Abu Ghraib, but rather were features of dozens of U.S. detention facilities worldwide (to date more than a half-dozen prisoners have allegedly been tortured to death). In a field where, until now, Congress has been inactive at best, the courts have been an indispensable bulwark against the vagaries of unchecked, and largely unquestioned, executive power.

Senator Graham's instinct that there is something wrong here is admirable indeed. But Congress would do better to begin by fixing the parts of our system that are broken than by breaking one of the few organs of democracy that has actually worked.

Deborah Pearlstein is director of the U.S. Law & Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights) and a visiting scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University. She clerked for Justice John Paul Stevens during the Supreme Court's 1999-2000 term.

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