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The Loopholes in McCain's Bill

Bringing Torture into Court

by JOANNE MARINER

After threatening a veto, the Bush administration has finally acquiesced to the passage of the McCain Amendment, aimed at protecting detainees in U.S. custody from torture and other abuse. The measure, named for its sponsor, Senator John McCain, is likely to pass Congress this week and be signed into law.

That’s the good news.

The bad news is that the McCain Amendment was part of a larger package that takes some dismaying steps backward in the treatment of detainees. Think of the Detainee Treatment Act of 2005 as McCain plus anti-McCain: protection plus protection-stripping. Think of it, in other words, as a self-contradictory political compromise.

Via provisions that bar detainees from bringing suits against torture and abuse, the bill stops them from enforcing the very rights that the McCain amendment is supposed to protect. And it undercuts the McCain protections in another important way, as well: by permitting statements obtained coercively to be relied upon in quasi-judicial proceedings.


Torture Evidence before Combatant Status Review Tribunals

The United States has never before legally endorsed the use of testimony obtained via torture or other coercive methods. But in a worrying precedent, the new detainee bill implicitly allows review boards at Guantanamo to rely on such evidence in determining whether prisoners should be classified as "enemy combatants."

The bill’s language on this question is somewhat oblique. It does not specifically state that statements obtained coercively are admissible before combatant status review tribunals. Rather, it provides that the review boards, in reaching a decision on the status of a detainee, should consider whether statements supporting that decision were obtained under coercion.

If the statements were obtained coercively, the boards are instructed to assess the "probative value" of those statements.

The bill’s reference to the probative value of statements obtained coercively – i.e., through torture or other abuse – points to a well-known problem: When torture is used, the resulting testimony is unreliable: people will often say anything to stop the abuse.
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But the bill does not definitively bar statements obtained under torture or other abuse. Instead, it leaves open the possibility that a review tribunal will find that a statement obtained coercively is nonetheless reliable. And by leaving the possibility open, it indicates that such statements may be used.


Waterboarding for Testimony

News headlines over the past eighteen months have made it clear that there is nothing hypothetical about the scenario that the bill envisions. Many detainees in U.S. custody have been physically abused; some have been tortured, and a few have apparently been beaten to death.

And yes, some of the terrorism suspects in U.S. custody have talked. Khalid Sheikh Mohammed, whom the 9/11 Commission called "the principal architect" of the September 11 attacks, was allegedly subject to waterboarding, a form of simulated drowning, while in CIA custody. His statements, said to be voluminous, have probably already been by combatant review boards.

Statements by him and by other detained al Qaeda suspects will also likely provide much of the factual basis for the military commission prosecutions.


Torture Degrades the State That Uses It

So why not allow such statements, if the court or administrative body takes their origins into account? First, as mentioned above, statements obtained under torture are untrustworthy. A court or administrative body might be tempted to rely on them in the absence of opposing evidence, but the risk of a wrongful outcome is high.

Second, their use in court and administrative proceedings is illegal under international law. Article 15 of the Convention Against Torture, a treaty that the United States has ratified, requires that governments ensure "that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings." (The treaty has an exception, however, for the statement’s use in the trial of the person accused of committing the torture.)

But most importantly, torture is abhorrent to fundamental values and its use in judicial proceedings shames a democratic state. Just two weeks ago, Britain’s highest judicial body forcefully reaffirmed this notion, ruling that evidence obtained under torture may not be relied upon by British courts. Unsurprisingly, several of the law lords hearing the case referred directly to U.S. practices at Guantánamo Bay.

As one law lord explained, the use of torture "corrupts and degrades the state which uses it and the legal system which accepts it."

"Torture is not acceptable," another law lord stated categorically. "This is a bedrock moral principle in this country."

Until recently, one would have thought that it was a bedrock moral principle in ours, as well.

JOANNE MARINER is a FindLaw columnist, CounterPunch contributor and human rights attorney in New York.