Does Congress really want to fight the war on terror with false confessions?
On Nov. 22, the Bush administration announced that it would not charge Jose Padilla in a plot to plant a radioactive bomb in an American city. Never mind that he'd been paraded about as a major terrorist and held for three and a half years as an enemy combatant in a military brig—in the end, Padilla was indicted on lesser charges that have nothing to do with a dirty bomb. According to a Nov. 24 New York Times article, the administration changed course because it "was unwilling to allow testimony from two senior members of Al Qaeda who had been subjected to harsh questioning."
Those al-Qaida members are Khalid Sheik Mohammed and Abu Zubaydah, who are being held in secret prisons by the CIA. A 2004 review by the CIA's inspector general found that Mohammed has been subjected to near-drowning while in custody (the term of art is "waterboarding"). He and Zubaydah "could almost certainly not be used as witnesses, because that could expose classified information and could open up charges from defense lawyers that their earlier statements were a result of torture," unnamed government officials told the Times.
Funny how that works. Because on Nov. 8, the government charged someone else in the dirty-bomb plot. What's the difference between the new bad guy, Binyam Mohammed, and Jose Padilla? Padilla is an American citizen who was picked up stateside, and the Bush administration had decided not to push its luck by insisting on trying him before a special military commission that can dispense with basic constitutional due process. Binyam Mohammed, on the other hand, is a Yemen native and a British resident being held in Guantanamo Bay. So, the administration plans to try him before a military commission. And while evidence obtained through torture doesn't fly in federal court (or at a regular military court-martial), a military commission may choose to hear it. And apparently will so choose: The dirty-bomb case against Binyam Mohammed relies heavily on tainted evidence. As the Times reported, without the questionable statements of Khalid Sheik Mohammed and Zubaydah, "it would be nearly impossible for the United States to prove the charges" relating to the dirty bomb.
All of this is bad news for Binyam Mohammed, of course, who says (through his lawyer, Clive Stafford Smith) that he falsely confessed to participating in the dirty-bomb plot after being repeatedly beaten and cut on the genitals while in American custody for 18 months in Morocco. But what's worse is that the bipartisan bill pending before Congress concerning the rights of the Guantanamo detainees—the Graham-Levin-Kyl Amendment—makes it harder rather than easier to block the use of tainted evidence by a military commission. As currently written, the bill would allow a detainee to be convicted and sentenced to death by a commission without recourse to federal court to challenge either the conviction or the sentence. If that sounds medieval, that's because it is. Self-respecting courts don't admit torture testimony because it's untrustworthy. Whether they're waterboarded, beaten, or pulled apart on a rack, suspects who have been tortured don't speak the truth. They speak the words their tormentors want to hear.
The Graham-Levin-Kyl Amendment promises that a combatant status review tribunal or administrative review board "may not consider statements derived from persons that … were obtained with undue coercion." So far, so good. But the CSRTs and the review boards aren't the military commissions. They're for determining whether continued detention of an "enemy combatant," as designated by the Bush administration, is proper—not for deciding whether the detainee is guilty for a war crime and should be punished for it. The military commissions are nowhere to be found in the part of the bill that bars the admission of coerced testimony.
Elsewhere, the amendment provides that the D.C. Circuit (one of the federal courts of appeal) can review the decisions of a military commission. But the court's scope of review is limited. The D.C. Circuit can decide whether the final decision of a commission is "consistent with the Constitution and laws of the United States." That language sounds promising. Tortured testimony, after all, is clearly unconstitutional. Except that according to the D.C. Circuit—unlike other federal appeals courts—the constitution doesn't apply to non-Americans like the Guantanamo detainees. If you're an alien who has no "voluntary connection" to the United States—in other words, if you came here because you were snatched, as opposed to extradited—then you don't get the constitutional protections of due process in the D.C. Circuit. You get nothing.
What about the rules governing the military commissions themselves? According to the latest set of regulations put out by the Department of Defense, the commissions are supposed to provide for "a full and fair trial." That sounds promising, too. But the regulations also include a huge loophole. They state that they do "not create any right, benefit, or privilege, substantive or procedural, enforceable by any party, against the United States." And also that nothing in them "shall be construed to be a requirement of the United States Constitution." In other words, the rules mean what the Pentagon, not the Constitution, says they mean. Also, they can change at any time. Reassuring, no?
In theory, if Graham-Levin-Kyl becomes law the Supreme Court could still come through for a detainee convicted by a military commission. It could reject the D.C. Circuit's stingy approach to the constitutional rights of snatched aliens, for one thing. And it could decide that the military commissions are unconstitutional on other grounds. But under the terms of Graham-Levin-Kyl, a detainee has to get a final order from a military commission, then a ruling from a military appellate board, then a review by the president, and then a decision from the D.C. Circuit before his case can reach the Supreme Court. There are no timetables or deadlines for the military process or for presidential review. So Binyam Mohammed or any other unlucky soul could rot in Guantanamo for many more years before the justices weigh in on his fate.
Graham-Levin-Kyl is supposed to be the compromise that both Democrats and Republicans can embrace. Admittedly, it's better than the original version of the bill, which Sen. Lindsey Graham, R-S.C., sponsored on his own and which the Senate passed with little debate. But the compromise that Sen. Carl Levin, D-Mich., and Sen. Jon Kyl, R-Ariz., are co-sponsoring is a hastily conceived and deficient response. Yesterday, Sen. Graham argued in the Washington Post that in combination with the bill Sen. John McCain, R-Ariz., has proposed to prohibit the torture of foreign detainees, the Graham-Kyl-Levin amendment strikes "a balance between protecting our nation's interests and ensuring that we adhere to the values for which we are fighting." It's hard to see how a death sentence that's based on torture testimony adheres to American values.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. She is also the Truman Capote Fellow at Yale Law School and a contributing writer for the New York Times Magazine. Her new book is Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at email@example.com or on Facebook or Twitter.