Big Changes Loom For Captives' Rights
House and Senate negotiators agreed on a new legal system for Guantánamo that will block courts from hearing complaints from detainees, including those of torture.
By Frank Davies
Miami Herald
December 17, 2005
WASHINGTON - Congress this weekend is expected to overhaul the legal system at Guantánamo Bay, Cuba, eliminating almost all access by detainees to federal courts and, according to its Senate sponsor, wiping out petitions filed by about 300 of the 500-plus captives in the prison camp.
Sen. Lindsey Graham, R-S.C., prime author of the new system, emphasized Friday that it will give each detainee one chance to contest his status with the U.S. Court of Appeals in Washington, and for the first time get Congress involved in the oversight of Guantánamo.
''They will still have rights, but I don't think anybody intended in wartime that people who are trying to kill us have the right to sue us,'' Graham said.
But human rights groups and lawyers for detainees criticized the changes, which are part of a defense policy bill. House and Senate negotiators agreed on all provisions of the bill Friday, including Sen. John McCain's ban on ''cruel, inhuman and degrading'' treatment of detainees, clearing the way for a final vote.
Confusion
Key elements of the new system are causing confusion or are in dispute, including whether dozens of habeas corpus petitions filed so far will be wiped away. That would include a challenge to a military trial at Guantánamo now before the Supreme Court.
Graham said he believes all lawsuits filed so far -- some almost 4 years old -- ''will be dismissed'' when the new law goes into effect and is replaced by the one-shot appellate review.
But Sen. Carl Levin, D-Mich., a sponsor of Graham's amendment, had the opposite interpretation.
''The revised amendment that we were able to work out with Sen. Graham does not apply to or alter any habeas case pending in the courts at the time of enactment,'' Levin said in a statement late Friday.
Tom Wilner, an attorney who represents six Kuwaitis held in Guantánamo, said he is prepared to argue to the judges handling his cases that the new law would not be retroactive.
Rights groups have focused their criticism on two provisions quietly added to the defense bill in the last few days.
Instead of barring the use of information ''obtained by undue coercion,'' the military tribunals that review each detainee's case are directed to assess whether such information has ``value.''
''That would just undermine the McCain amendment,'' said Tom Malinowski, Washington advocacy director of Human Rights Watch. ``For the first time, Congress would be telling the courts it's OK to use information gained through torture.''
Different view
Graham's interpretation was very different. He said the new language means the appellate court will look closely at the tribunal hearings and whether they improperly relied on information from torture.
''The court will be looking over the shoulder of the tribunals and their standard of evidence,'' Graham said.
The other new provision bars not just habeas corpus petitions from detainees but any legal action, such as a lawsuit alleging torture, by a detainee who the courts agree was properly held as an enemy combatant.
''If they're held properly, they can't sue,'' said Graham. He added that could accelerate the release of some Guantánamo detainees ''who may not belong there,'' but whose release has been held up because of fears they would sue U.S. personnel.
Graham said that provision is designed to bar lawsuits over treatment at Guantánamo, where several detainees have alleged abuse, but not elsewhere. A detainee who claims he was mistreated in Afghanistan, Iraq or a country like Egypt, if he was shipped there by U.S. authorities, would still have grounds to sue, Graham said.
Wilner said the impact of the new law ''would be to make Guantánamo a no-law zone'' and insulate U.S. authorities from any legal challenge over mistreatment of prisoners. He predicted judges will be skeptical of its ''extreme efforts'' to strip the courts of jurisdiction.
Reports required
The new law also requires the Defense Department to give Congress periodic reports on detention procedures and makes the top civilian official overseeing detention issues -- currently Deputy Defense Secretary Gordon England -- accountable to the Senate.
The law marks the first time that Congress is getting directly involved in the four-year battle over the legal system at Guantánamo. The open-ended detention of more than 500 prisoners has caused an international uproar and led to a Supreme Court ruling last year that the detainees had access to federal courts.
By Frank Davies
Miami Herald
December 17, 2005
WASHINGTON - Congress this weekend is expected to overhaul the legal system at Guantánamo Bay, Cuba, eliminating almost all access by detainees to federal courts and, according to its Senate sponsor, wiping out petitions filed by about 300 of the 500-plus captives in the prison camp.
Sen. Lindsey Graham, R-S.C., prime author of the new system, emphasized Friday that it will give each detainee one chance to contest his status with the U.S. Court of Appeals in Washington, and for the first time get Congress involved in the oversight of Guantánamo.
''They will still have rights, but I don't think anybody intended in wartime that people who are trying to kill us have the right to sue us,'' Graham said.
But human rights groups and lawyers for detainees criticized the changes, which are part of a defense policy bill. House and Senate negotiators agreed on all provisions of the bill Friday, including Sen. John McCain's ban on ''cruel, inhuman and degrading'' treatment of detainees, clearing the way for a final vote.
Confusion
Key elements of the new system are causing confusion or are in dispute, including whether dozens of habeas corpus petitions filed so far will be wiped away. That would include a challenge to a military trial at Guantánamo now before the Supreme Court.
Graham said he believes all lawsuits filed so far -- some almost 4 years old -- ''will be dismissed'' when the new law goes into effect and is replaced by the one-shot appellate review.
But Sen. Carl Levin, D-Mich., a sponsor of Graham's amendment, had the opposite interpretation.
''The revised amendment that we were able to work out with Sen. Graham does not apply to or alter any habeas case pending in the courts at the time of enactment,'' Levin said in a statement late Friday.
Tom Wilner, an attorney who represents six Kuwaitis held in Guantánamo, said he is prepared to argue to the judges handling his cases that the new law would not be retroactive.
Rights groups have focused their criticism on two provisions quietly added to the defense bill in the last few days.
Instead of barring the use of information ''obtained by undue coercion,'' the military tribunals that review each detainee's case are directed to assess whether such information has ``value.''
''That would just undermine the McCain amendment,'' said Tom Malinowski, Washington advocacy director of Human Rights Watch. ``For the first time, Congress would be telling the courts it's OK to use information gained through torture.''
Different view
Graham's interpretation was very different. He said the new language means the appellate court will look closely at the tribunal hearings and whether they improperly relied on information from torture.
''The court will be looking over the shoulder of the tribunals and their standard of evidence,'' Graham said.
The other new provision bars not just habeas corpus petitions from detainees but any legal action, such as a lawsuit alleging torture, by a detainee who the courts agree was properly held as an enemy combatant.
''If they're held properly, they can't sue,'' said Graham. He added that could accelerate the release of some Guantánamo detainees ''who may not belong there,'' but whose release has been held up because of fears they would sue U.S. personnel.
Graham said that provision is designed to bar lawsuits over treatment at Guantánamo, where several detainees have alleged abuse, but not elsewhere. A detainee who claims he was mistreated in Afghanistan, Iraq or a country like Egypt, if he was shipped there by U.S. authorities, would still have grounds to sue, Graham said.
Wilner said the impact of the new law ''would be to make Guantánamo a no-law zone'' and insulate U.S. authorities from any legal challenge over mistreatment of prisoners. He predicted judges will be skeptical of its ''extreme efforts'' to strip the courts of jurisdiction.
Reports required
The new law also requires the Defense Department to give Congress periodic reports on detention procedures and makes the top civilian official overseeing detention issues -- currently Deputy Defense Secretary Gordon England -- accountable to the Senate.
The law marks the first time that Congress is getting directly involved in the four-year battle over the legal system at Guantánamo. The open-ended detention of more than 500 prisoners has caused an international uproar and led to a Supreme Court ruling last year that the detainees had access to federal courts.
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