Congress bans torture—but allows torture testimony.

The law, lawyers, and the court.
Dec. 15 2005 5:19 PM

The Get-Out-of-Torture-Free Card

Why is Congress banning torture but allowing the use of torture testimony?

Congress deserves a pat on the back today for facing down the Bush administration and passing John McCain's unconditional ban on torture, right? Not exactly. Alongside McCain's legislation sits another amendment that undercuts the ban by allowing for the legal use of testimony obtained by torture. If enacted, that provision will move the United States away from standing behind a clear legal and moral principle and into the murk of hedges and exception-making—achieving exactly what McCain's bill is supposed to avoid.

What's the point of banning torture? There's a pragmatic argument and a moral one for ensuring that detainees who are in American hands aren't subjected to cruel and degrading treatment, as Sen. John McCain, R-Ariz., and his supporters have argued. Interrogations that use techniques like waterboarding often produce unreliable information. And they shred America's image abroad, by putting us in the same category as other big bad oppressors, at exactly the moment we're supposed to be carrying the torch of democracy and freedom. Michael Kinsley this week explained—better than I can—why policy should be driven by the principle that we don't torture people and not the rare "but what if" scenario of a captured terrorist who knows the whereabouts of a ticking time bomb that has enthralled Charles Krauthammer. Exceptions shouldn't drive rule-making because the exception becomes the rule. That's why McCain's legislation doesn't exempt the CIA from its ban on the use of torture by the military, despite the Bush administration's protestations.

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

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But the Graham-Levin-Kyl amendment, which is part of the same defense bill as the McCain provision and is expected to pass along with it, contains a big, fat exception. The bill would allow torture testimony to be used to hold and to punish detainees. Last week, I criticized a version of Graham-Levin-Kyl passed by the Senate that would permit the use of this testimony when a Guantanamo detainee is charged with a crime and tried before a special military commission. That's bad. But in the intervening week the amendment has gotten worse. The version that came out of the House-Senate conference this week allows the use of torture testimony before combatant status review tribunals, which the Bush administration has set up to determine whether a detainee is an enemy combatant. Each detainee gets a hearing before a CSRT. If the detainee loses, he can be locked up at Guantanamo Bay without charges, indefinitely it seems. Graham-Levin-Kyl also would allow torture testimony before administrative review boards, which periodically recheck whether the detainee is, in fact, the enemy combatant that the government says he is.

Graham-Levin-Kyl thus means that when a Guantanamo detainee gets his moment in court—or the closest thing to it, to which he's currently entitled—he can claim that he hasn't fought against the United States, doesn't belong to al-Qaida, and should be allowed to go home. And then the government lawyers on the other side can say, "Actually, you are an al-Qaida member. We think so because another guy said you were. We asked him about you right before we made him think he would suffocate if he didn't say what we wanted to hear."

Under Graham-Levin-Kyl, a CSRT or administrative review board "shall to the extent practicable assess" whether any statement by or about the detainee "was obtained as a result of coercion" and "the probative value (if any") of such a statement." In other words, no steadfast rule to announce: The United States will not countenance torture. Merely a pliable balancing test, with its sly promise that America will look the other way on torture whenever the government thinks it needs to.

How will McCain and Graham-Levin-Kyl play out in practice? One reading of the twin provisions is that a government interrogator who tortured a detainee could be prosecuted for violating McCain's ban, even as the testimony he elicited is used to keep that detainee or another one behind bars. Talk about sending mixed signals. In practice, though, it's hard to see how claims of torture will come to light in any of these proceedings. Detainees don't have lawyers when they go before CSRTs and administrative review boards. They also don't have the right to see the evidence against them. Even when they're being tried before a special military commission—and potentially facing the death penalty—the evidence that they and their lawyers may review is limited to an FBI summary of what a witness told an agent about them. That summary includes nothing about the conditions of the witness' interrogation. So how can a detainee know whether torture was used—or challenge a review board's determination that the "probative value" of the torture testimony justifies its admission?

Graham-Levin-Kyl is a bipartisan effort, sponsored by Sen. Carl Levin, D-Mich., along with Sens. Lindsey Graham, R-S.C., and Jon Kyl, R-Ariz. If it passes, we will have both parties to thank for putting it on the record that the United States is a country that locks people up based on testimony obtained by torture that they don't know about and can't challenge. Contrast that with last week's unanimous decision by Britain's law lords, who ruled—in defiance of the government—that evidence obtained by torture may never be used in British courts. "The rejection of torture by the common law has a special iconic importance as the touchstone of a human and civilised legal system," one of the law lords wrote. The same cannot be said, apparently, for the laws of the United States.