Torture by the Back Door

Lindsey Graham has played a largely laudable role in the battle for honorable standards of treatment for detainees in the War on Terror. His efforts to regulate litigation in the U.S. courts coming out of the detention facility in Guantánamo have been much more controversial. Senator Graham, who is a reserve Air Force JAG officer and appeals judge, has couched some of his positions in terms of a desire to protect the integrity of the military courts system and to create a rational and efficient process of appeal. At a conceptual level this approach has much to it, though many JAG officers are quick to differentiate the established courts martial system from the military commissions and tribunals created by fiat of Secretary of Defense Rumsfeld, where sharp deviations from accepted courtmartial practice have been decreed.

Of all the controversial aspects of the new system Rumsfeld decreed for detainees in the War on Terror, none has been more controversial that the evidentiary standard given. Congress directed – in the Uniform Code of Military Justice – a flat prohibition on the use of testimony secured through torture or extreme coercion, and provided that the UCMJ rules would be binding on the military justice system. 10 U.S.C. sec. 863. The Federal Rules of Military Evidence carry this ban forward. But notwithstanding these clear signs of Congressional direction, Rumsfeld decided against any prohibition on the use of evidence extracted through torture – concluding that this should be left up to the finders of fact, who should be free to consider anything for “probative value.”

Accordingly it appeared reasonably clear that Rumsfeld’s course was a shirking – if not outright defiance – of Congressional guidance. Senator Graham’s original language would have made this clear, and reincorporated the prohibition. Of course such a piecemeal approach was dangerous, and would raise the specter of Congressional ratification or approval of the balance of the Rumsfeld rules. Since, as Senator Specter noted, Congress in fact failed to study these rules, such an inference would be clearly unwarranted.

In the last forty-eight hours, however, a turn for the worse appears to have been taken. Under strong pressure from the White House, it is now being said that Senators Graham, Warner and Levin have agreed to – or are close to agreeing to – this language:

Consideration of statements derived with coercion --

(1) Assessment -- The procedures submitted to Congress pursuant to subsection
(a)(1(A) shall ensure that a CSRT, ARB or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall to the extent practicable assess --
(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and
(B) the probative value (if any) of such statement

If adopted, this language could be viewed as acceptance of the Rumsfeld view that there is no prohibition per se on the use of evidence extracted by torture or other highly coercive means. In the history of the American Congress, this would mark its first acceptance of torture as a technique and blessing on the use of its fruits.

Coming after an 18-month public debate over torture policies at the end of which a solid consensus has formed against the Administration’s viewpoint, this would be a shocking result. It is made even more shameful by comparison with the decision of Britain’s highest court, handed down just one week ago, reaffirming the ban on the use of torture-extracted evidence as a legal absolute.

It is imperative that these backroom dealings on a matter of such important public concern be fully exposed and discussed. If Congress wishes to combine a vote against torture in the McCain Amendment with a back-door blessing on torture in Graham-Levin-Kyl, at least let this be done in full public view and let the votes of those who support this abomination be publicly recorded.