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I'm having a hard time following all the recent developments in US politics surrounding Guantanamo Bay and torture. Maybe you folks can help me out?

Note that the most important and urgent part of this entry, but also the part I'm most confused about, is down at the end of the following bullet list. Feel free to skim or skip down to there.

Here's what I know and what I've been able to piece together so far:

  • First, there's this notion floating around out there that torture, while unpleasant, is something we need to do now and then to get results. National security, donchaknow.
  • Back in 2002, then-White House Counsel Alberto R. Gonzales "advised the White House . . . that the torture of al Qaeda terrorist suspects might be legally defensible." The memo he wrote (which became public in 2004) "said that torturing suspected al Qaeda members abroad 'may be justified' and that international laws against torture 'may be unconstitutional if applied to interrogation' conducted against suspected terrorists." (Washington Post, June 2004). See also the Gonzales Torture Memo overview at Citizen's Rent, and Newsweek article "The Roots of Torture" (focusing primarily on Abu Ghraib).
  • I sent a letter to Senator Boxer last summer suggesting that torture is just plain wrong and asking her to stand up for that principle. I imagine she would've done so without my urging, but it seemed worthwhile to drop her a note anyway.
  • In September or October of 2005, Senator McCain introduced an amendment to the 2006 DoD appropriations bill providing "uniform standards for the interrogation of persons under the detention of the Department of Defense." It basically outlaws torture. (I was all pro-McCain for a while there, until I got the full-color flyer on election day in which McCain talked about how it important it was to pass Schwarzenegger's four reform propositions on the California ballot.)
  • You'd think such an amendment would be popular, and it was--91 senators voted in favor of it. (Or maybe 90? Different articles disagree.) Of course, that means that nine senators voted against prohibiting torture.
  • It wasn't only some senators who were opposed to the amendment. Vice President Cheney asked that the CIA be exempted from the no-torture rules. (I realize that mocking photos of public figures are cheap shots, but I can't help being entertained by that sneer of Cheney's in the photo accompanying this article.) I gather that Bush has subsequently said he'll veto the bill if it arrives on his desk with this amendment intact (and no CIA exemption), but I'm not certain of that. I'm a little unclear on why 90 senators won't be able to override the veto, though.
  • Anyway. A week ago, Richard Cohen wrote an op-ed column for the Washington Post titled "Torture, Shaming Us All, about talking with his Jordanian (?) driver, Bassam, about the US and torture and such.
  • That same day, Ben Rosenbaum blogged a letter to his senators on the subject. "It is horrifying and disgraceful that we are even having this conversation"; yes.
  • So here's where I get confused. That same day, or maybe the next day, I received an urgent email alert from the Center for Constitutional Rights, an organization that's been at the forefront of fighting for the rights of the prisoners at Guantanamo Bay. The CCR urged us to spread the word that Sen. Graham was trying to pass a new amendment that would eliminate the rights of those prisoners. I was in a hurry and I couldn't find any independent corroboration, and I'm opposed to posting alarmist unconfirmed rumors most of the time, so I held off.
  • But apparently the Senate did indeed pass the Graham amendment, 49 to 42. The CCR now has more details.
  • But I could have sworn I saw a newspaper article last week that quoted Graham as saying that he was proposing an amendment which would give Guantanamo prisoners more rights, not less. Did I just misread that? Does anyone know what I'm talking about?

I guess I'm conflating two different issues here: holding prisoners at Guantanamo without charges or a trial doesn't equate to torturing them, and the administration insists (last I heard) that all those prisoners are being treated humanely. (No word on how the prisoners at the alleged secret prisons in other countries are being treated.)

But I guess here's why I think these issues go together: my understanding is that we're holding those people at Guantanamo Bay precisely because that means certain US laws don't apply. Am I wrong about that? Wikipedia (which may or may not be accurate) says, in its Guantanamo Bay article: "It is unclear whether the detainees are protected by the constitutionally guaranteed civil rights which would be invoked if they were detained in the United States."

So on the one hand, at least 90 senators agree that we shouldn't be torturing people.

But on the other hand, at least 40 of those same senators apparently feel that the prisoners in Gitmo don't deserve constitutional protections.

Is the idea that the prisoners should have some intermediate status, where they aren't protected by the US constitution but they are nonetheless protected by the law against torture? I suppose that would be a consistent position to hold, but I find it baffling. But then, I'm only barely awake right now.

At any rate, if anyone can shed light on the Graham amendment, on why it's as popular as it is, and on what happens next, I'd be grateful.

In the mean time, it might be a good idea to call or write to your senators and representatives and ask them to do what they can to stop the Graham amendment. At this point I'm fairly convinced I must have just imagined or misunderstood the bit about Graham trying to give the prisoners more rights.

Okay, enough. I should go sleep.


As I understand it, the Graham amendment would not allow torture, it simply wouldn't allow prisoners to bring torture to the attention of the courts. It makes the McCain amendment unenforceable, but torture would still be illegal. I find it fairly easy to believe that forty or so Senators want torture to be technically illegal, but don't want any of our guys who actually torture anybody to be found out and prosecuted for it. Carl Levin (D-Swarthmore) got an amendment onto the Graham amendment that still doesn't give the Guantanamo prisoners habeus corpus access to the courts, but does allow a trifle more oversight of the prisons.

The go-to blogger on this issue, I think, is Jeanne D'Arc over at Body and Soul, and she is recommending some very fine and detailed posts over at Obsidian Wings.

As for the veto issue, it isn't clear to me that the House would override a presidential veto, if it came to that. It also isn't clear to me that the version that passes the House will look much like the Senate version, or that the reconciliation bill that ultimately reaches the president will have any vestige of the McCain, Graham or Levin amendments left. Furthermore, Marty Lederman over at SCOTUSblog appears to think that the amended amendment "would raise innumerable ambiguities".

Oh, and one more thing. I do encourage everybody to contact their Senators and Representatives on this issue, but as the Graham amendment (as amended) has passed, it's probably better to express it in more general terms, covering your concern for our treatment of prisoners and access to our courts.


I also find Talking Points Memo very useful for this kind of coverage. Leftie/Dem perspective, focused on a very fact- and source-based approach, combined with formal political analysis. (I believe Josh Marshall is trained as an historian.)


One important distinction here is between the police and the military; in particular, I'm not sure if the military can keep prisoners on US soil, or if that would violate the Posse Comitatus Act. In any case, keeping them in Cuba certainly ensures that the domestic police and courts can't get involved.

Also, the conduct of the soldiers in Cuba may be restricted by US law, even if the prisoners they're guarding don't have any rights under US law. Congress could pass a law prohibiting soldiers from wearing sunglasses, without implying that that prisoners have some sort of right to be guarded by sunglasses-free soldiers. Habeas corpus is more of a Constitutional rights thing; no-torture is more of a soldier conduct thing.

The reason some people are against the Graham amendment is because they feel it doesn't go far enough in guaranteeing rights. By allowing the right to challenge detention in certain cases, they're closing the door on a more general right of review.

To clarify...the Supreme Court had decided a year ago that Guantanamo prisoners could file habeas corpus petitions. In the original anti-torture bill, the Senate completely reversed this (I believe), making it so prisoners couldn't file them at all. The Graham amendment opens the door again in certain cases, but not all. So it still represents a narrowing of rights for prisoners, even though it's better than what they had yesterday.

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