Bringing Torture into Court: The Loopholes in McCain's Bill

After threatening a veto, the Bush administration has finally acquiesced to the passage of the McCain Amendment, aimed at protecting detainees in U.S. custody from torture and other abuse. The measure, named for its sponsor, Senator John McCain, is likely to pass Congress this week and be signed into law.

That's the good news.

The bad news is that the McCain Amendment was part of a larger package that takes some dismaying steps backward in the treatment of detainees. Think of the Detainee Treatment Act of 2005 as McCain plus anti-McCain: protection plus protection-stripping. Think of it, in other words, as a self-contradictory political compromise.

Via provisions that bar detainees from bringing suits against torture and abuse, the bill stops them from enforcing the very rights that the McCain amendment is supposed to protect. And it undercuts the McCain protections in another important way, as well: by permitting statements obtained coercively to be relied upon in quasi-judicial proceedings.


Torture Evidence before Combatant Status Review Tribunals

The United States has never before legally endorsed the use of testimony obtained via torture or other coercive methods. But in a worrying precedent, the new detainee bill implicitly allows review boards at Guantanamo to rely on such evidence in determining whether prisoners should be classified as "enemy combatants."

The bill's language on this question is somewhat oblique. It does not specifically state that statements obtained coercively are admissible before combatant status review tribunals. Rather, it provides that the review boards, in reaching a decision on the status of a detainee, should consider whether statements supporting that decision were obtained under coercion.

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