Graham’s bill says that the regulations the DoD writes for proceedings at Guantanamo must prevent the use of evidence that a prisoner can prove by a preponderance was produced through “undue coercion.” But the DoD will always argue that a prisoner who alleges that his confessions were produced under torture is lying. Without a lawyer, without being able to see the evidence against him, without being able to force the court to look at his medical records, without a truly independent decisionmaker, how on earth is a prisoner going to be able to prove that by a preponderance?
Katherine Regina has been producing some outstanding analysis about the torture/habeus corpus controversies. Here’s her analysis of why senators were hoodwinked by the Graham amendment:
Graham is correct to state that the Guantanamo detainees are not criminal defendants and do not have the rights of criminal defendants in U.S. courts. But here is what is essential to understand: no one is arguing that they are.
The Supreme Court held in Hamdan v. Rumsfeld that the President had the authority to hold a U.S. citizen as an enemy combatant rather than charging him with a crime. All of the judges who disagreed with that interpretation did so only because Hamdan was a U.S. citizen. So are they going to suddenly turn around and hold that non-U.S. citizens on Guantanamo must be brought up on criminal charges or released? No. There is no possibility of that. The detainees’ lawyers are not seeking it. They know damn well that if they do, they will lose.
I don’t think Graham is genuinely confused about this point. As a JAG lawyer he must know that habeas is not synonymous with civilian criminal trials. I don’t know that he was actively trying to mislead people about it; it may only be that he thought it made good rhetoric. But whatever his intent, I think he has misled several other senators into thinking that the question is whether the Guantanamo detainees will be tried by a military trial of some sort (a court martial, a military commission, or what have you) or as civilians under U.S. criminal law.
What then does a habeus corpus in the military court system offer to Gitmo prisoners: She writes:
the detainees’ attorneys are arguing that they have a right to a military trial that complies with the Due Process clause of the Fifth Amendment and/or the Geneva Conventions and which shows they really are enemy combatants; the governments’ attorneys are arguing that they don’t get any of those things.