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Right to Torture: The Erosion of Legal Remedies

Sean Sullivan
Date Published: 
June 01, 2006

It is hard to make habeas corpus sound sexy. Consequently, it is perhaps the most important legal tool that no one knows about, and the Bush Administration is busy ensuring that fewer and fewer people will be able to use it.

Shorthand for the fancy Latin phrase “habeas corpus ad subjiciendum,” habeas corpus means to “hold the body to be subjected to examination”—or that one has the right to contest their detention if held by authorities. It has been around since the Magna Carta and has been used to challenge detention by everyone from public defenders to lawyers representing protestors at the 2004 Republication National Convention.

In November 2005, many human rights organizations were fighting to defend the so-called McCain Amendment, designed to protect prisoners of the US military from being tortured. Meanwhile, the Bush Administration, through Senator Lindsey Graham, was busy attacking the right to habeas corpus. Their goal has been to make sure that even if one was tortured by the US, they would never get a chance to prove it in a court of law.

“Easy Rider”

Known as the Graham-Levin Amendment, this initiative is a direct attack on the lawsuits filed by organizations like the Center for Constitutional Rights on behalf of the men detained at Guantánamo Bay. Senator Graham snuck the amendment in as a rider on the massive military expenditure bill Congress had to pass before the holiday break in order to ensure US soldiers continued receiving food and supplies. The process was intentionally rushed. There was little debate on the floor when the amendment was introduced, and few people learned what it all meant until it was too late. It was just how the Bush Administration wanted it.

Arguing for the amendment on the Senate floor, Lindsey Graham said that the Guantánamo detainees were gumming up the legal system with their demands for a day in court. The real goal of the legislation is clear: to ensure that non-US citizens held by the military never have a chance to question their detention or have their case heard in a court of law. So while the McCain amendment prohibits the US government from engaging in torture, the Graham-Levin Amendment prevents anyone from holding the government accountable should allegations of torture arise. If a detainee is being held in a secret facility in Eastern Europe or Pakistan today, the promises of the McCain amendment will do them no good. Even if someone could find out their name and where they are being held, they could never use the law to help them.

This attack on habeas corpus is one part of the larger strategy to rework the legal system and gain more flexibility for the executive branch. The ultimate goal of the Bush Administration is to be able detain and torture people deemed terrorists, and to keep it all far from the prying eyes of the public.

Habeas and Guantánamo

Using the writ of habeas corpus, the Center for Constitutional Rights and hundreds of cooperating attorneys have been working to find out who is at Guantánamo and get their cases heard in federal court. The Graham-Levin Amendment negates these efforts by specifying that only US citizens and those held in jails on US soil have a right to a day in court. Other prisoners may be detained indeterminately and never have recourse to challenge it.

What the lawyers who’ve taken on the cases of those detained at Guantánamo have found out from their clients has been troubling at best. Many of the men were picked up by the US military far from any battlefield. Some were turned in by neighbors or acquaintances for US bounties of up to $25,000. Others were pulled off planes in Thailand or seized in the streets of Karachi. There are numerous allegations of torture, and conditions on the base are so dire they have provoked multiple hunger strikes from prisoners.

This is all news the Bush Administration would rather we not hear. The easiest way to keep it from the public is to prevent access to the men at Guantánamo and other military detention facilities. By ending any chance at representation, Bush and Graham are trying to put a final wall around their prison camps and assure that no one ever knows the full story surrounding the prisoners at Guantánamo Bay, Baghram Air Force Base in Afghanistan, Abu Ghraib, and other secret detention facilities around the world. Moreover, no one will ever know what is happening to them behind closed doors.

Fighting whom?

That the US is willing to hold non-citizens forever without pressing charges or allowing access to a lawyer is unjust and anti-democratic to say the least. But advocates are also worried about how the Graham-Levin Amendment will be used in the future. The US has a history of using laws for purposes they were not originally intended. If we look at the history of legislation passed to protect against terrorism, such as the Antiterrorism and Effective Death Penalty Act (AEDP) passed by the Clinton Administration, we should be worried about the future of the Graham-Levin Amendment.

In the wake of the 1995 Oklahoma City bombing, Bill Clinton passed the AEDP as an alleged deterrent against future terrorist attacks. Instead, it has been used almost exclusively to shorten the path to the electric chair for poor people and people of color in this country by limiting their right to habeas corpus. Since September 11, 2001, AEDP has been almost irrelevant to “fighting terrorism,” as it is only applicable to defendants held in the US. Those who are killed with regularity since AEDP’s passage are almost all US citizens, few of whom have been labeled terrorists. If any lesson can be learned from AEDP, it is that what is marketed as a piece of legislation aimed at those deemed terrorists will be extended to attack all of our rights.

As it is currently worded, the Graham-Levin Amendment applies only to non-citizens detained outside the US. But will non-citizens arrested in the United States for other crimes be held outside the country’s boundaries and denied access to counsel? Will the government strip the citizenship of those it deems terrorists and then deny them access to the courts? The answers to these questions are unclear. But if leftist legal scholars are considering these issues, then you can be sure an ambitious young federal prosecutor is as well.

What next?

As federal prosecutors devise new ways to defend and extend the reach of Graham-Levin, many lawyers are formulating legal responses to the legislation. For those held at Guantánamo and other US facilities around the world, this legal work may be too little, too late. Currently, unknown numbers of men in the Guantánamo Bay prison camp, frustrated by their conditions and hopeless in the face of limitless detention, are on hunger strike.

Because some attorneys have been unable to see their clients or pressure the courts to move forward on their clients’ petitions, they have begun work on “death motions.” These will require the bodies of those who die at Guantánamo be returned to their families within the time prescribed by Islamic law. Since these lawyers are prevented from saving their clients’ lives, they can only prepare for their clients’ deaths.

Despite the best efforts of many attorneys, if anything is going to stop the Bush Administration’s erosion of the protections of the law, it is not going to be lawyers in courtrooms. Last-minute lobbying by lawyers failed to stop the Graham-Levin Amendment from passing. With the glacial pace of litigation and a Supreme Court stacked by Bush, lawyers will not be able to challenge erosion of habeas corpus by themselves.

To reverse the rollback on civil and human rights, it will take social movements educating and organizing the public to make sure the situation does not become any worse. The Bush Administration’s plan to change the nature of the legal process in this country has been well thought-out and strategic. If we are going to push back from the other side, we’ll need to be just as thoughtful.

Sean Sullivan works at the Center for Constitutional Rights (“”) and studies political economy at the City University of New York. Thanks to Heidi Reijm for her invaluable help with this piece.