ACLU Urges Congress to Reject Court Stripping Measure; Proposal Denies Detainees the Right to Challenge the Use of Torture

November 10, 2005 12:00 am

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WASHINGTON – The American Civil Liberties Union today urged senators to reject an amendment, offered by Senator Lindsey Graham (R-SC) that would make the McCain anti-torture amendment nearly impossible to enforce at Guantanamo Bay. The Graham amendment would strip all courts, including the Supreme Court, of jurisdiction to consider habeas corpus petitions or any other action challenging any aspect of the detention of foreign detainees held at Guantanamo Bay, except for the narrow question of whether status review boards follow their own rules.

The Graham amendment comes just days after the Senate passed, for the second time, the McCain anti-torture amendment, and in the same week that the Supreme Court announced that it will consider the constitutionality of President Bush’s military commissions for detainees at Guantanamo Bay.

The ACLU noted that on a strong bipartisan majority of 90-9 last month and by voice vote last week, the Senate adopted Senator John McCain’s (R-AZ) proposal that bolsters the prohibition on torture by the government. McCain’s amendment uses the Army’s field manual on interrogations as the legal standard for interrogation policies, and prohibits cruel, inhuman, and degrading treatment. McCain, a prisoner of war during the Vietnam War, said following those procedures would have prevented abuse scandals at Abu Ghraib and Guantanamo Bay.

By depriving all courts of jurisdiction over nearly all claims by foreign detainees held at Guantanamo Bay, the Graham amendment would eviscerate the protections of the McCain amendment and other anti-torture laws, violate the Constitution by denying the Supreme Court its role as the final authority on whether government actions are constitutional and legal and terminate nearly all court cases brought by military officers on behalf of detainees.

The following can be attributed to Christopher E. Anders, an ACLU Legislative Counsel:

“Guantanamo Bay is not a black hole: the government shouldn’t be able to round up people, toss them in there for years without charging them, and then slam shut the courthouse doors. If the Graham amendment is adopted, it will be nearly impossible to enforce Senator McCain’s amendment barring torture and abuse. Persons held at Guantanamo Bay would have no access to the courts to seek protection against government-funded torture, abuse or due process violations.

“The Supreme Court has already rejected the government’s claim that Guantanamo Bay is a legal no-man’s land. Congress won’t be able to clean up the mess in Guantanamo Bay until it restores the Constitution and the rule of law to everyone held by the federal government.”

To read the ACLU’s letter to the Senate on the Graham Amendment, go to:

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