ACLU Letter to Congress Urging Protections Against Torture

VOTE “NO” ON GUTTING PROTECTIONS AGAINST TORTURE. VOTE “NO” ON THE DEFENSE DEPARTMENT APPROPRIATIONS CONFERENCE BILL.

CONFEREES’ CHANGES TO SENATE-PASSED GRAHAM AMENDMENT WILL MAKE IT HARDER–NOT EASIER–TO STOP THE FEDERAL GOVERNMENT FROM USING TORTURE AND ABUSE.

December 21, 2005

RE: Conference Changes to the Senate-Passed Graham Amendment to the DOD Authorization Bill Jeopardize Protections Against Torture and Abuse

Dear Senator:

The American Civil Liberties Union strongly urges you to oppose the Defense Department conference bill because of changes made during conference to the Senate-passed Graham amendment. The conferees’ changes allow evidence obtained by torture and abuse to be the basis for indefinitely holding a person; cut off all access to the courts by persons held at Guantanamo Bay, except for very limited appeals; and undermine the legislation’s provisions for applying the Constitution to government actions at Guantanamo Bay.

If passed, the Senate will be taking two unprecedented steps in putting the United States outside the rule of law. For the first time in its history, Congress would authorize the use of evidence obtained by torture. In addition, it would also mark the first time in modern history that Congress stripped all courts, including the Supreme Court, of jurisdiction to stop torture or abuse, or other violations of due process, of a group of persons whom the Supreme Court has held are entitled to the due process protections of the Constitution.

The ACLU strongly urges you to vote “no” on the conference bill. These changes would be a big step backward, instead of a step forward, in stopping the government from using torture and abuse during interrogations. Instead of putting an end to the federal government’s use of torture and abuse, Congress would remove many of the remaining protections against torture, abuse, and denial of due process at Guantanamo Bay.

Specifically, changes made by the conferees would:

Explicitly authorize the federal government to use evidence obtained by torture in deciding whether to hold a person indefinitely and without criminal charges at Guantanamo Bay. Congress has never before authorized the use of evidence obtained by torture or abuse. Under the conference bill, even evidence obtained through torture committed by countries such as Syria or Saudi Arabia could be considered by the federal government in making its determination to hold persons at Guantanamo Bay without any criminal charges. As a result, the federal government would have an additional incentive to continue its practice of kidnapping persons and sending them to countries that engage in torture, as a way of obtaining additional evidence. The problem is compounded by the government’s use of secret evidence during its proceedings–even refusing to let the detainee know the evidence being used as the basis for detention.

Strip the Supreme Court and all other courts of jurisdiction to decide on the constitutionality and legality of nearly all aspects of the detention of persons held at Guantanamo Bay in any cases brought after enactment. Despite the Supreme Court holding that persons held at Guantanamo Bay have due process protections under the Constitution, the conference bill would expand the Senate-passed Graham amendment’s bar on habeas corpus petitions to prohibit all federal jurisdiction, except for appeals of decisions of combat status review tribunals and some military commissions at Guantanamo Bay. Moreover, the Graham amendment has also been changed to state that the legislation does not imply that the Constitution or any other laws apply to the procedures or actions of the combat status review tribunals or military commissions. The combined effect of these expanded court-stripping provisions would be to turn Guantanamo Bay into a legal no-man’s-land for any claims filed after the date of enactment.

We strongly urge you to reject the conference bill because the conferees’ changes made to the Senate-passed Graham amendment would, for the first time ever, strip the courts of nearly all jurisdiction to stop the government from torturing, abusing, or indefinitely detaining persons without charges at Guantanamo Bay, and make evidence obtained by torture part of the secret evidence used by the federal government to detain persons indefinitely.

Because conferees made these unprecedented changes to the Senate-passed Graham amendment, the ACLU strongly urges you to vote “no” on the Defense Department conference bill.

Sincerely,

Caroline Fredrickson
Director
ACLU Washington Legislative Office

Christopher E. Anders
Legislative Counsel
ACLU Washington Legislative Office