Author Archives: Michael Froomkin

Sen. Graham has a reputation as an honorable man, and of the GOP Senators has tended to be one of the better ones on the torture issue, probably due to his experience as an Army JAG officer. That makes his introduction of the Graham Amendment and especially the speech in support of the amendment so very hard to explain.

For a full-bore, devastating, refutation of the claim Sen. Graham made last week citing the danger of litigation abuse in support of his proposal to cut off meaningful judicial review of the conditions at Guantánamo — arguments that may well have swayed several votes (including his own, if he believed what he was being told) — see the dramatic deconstruction at Obsidian Wings. In the list that follows the titles are hilzoy’s and Katherine’s, but the rest is just my summaries of their much fuller and well-supported posts:

• About Them: Setting the scene, outline of Sen. Graham’s sensational charges about litigation abuse by detainees.
• Medical Malpractice: Initial attempt to refute Graham’s claim of litigation abuse; relies on general facts we know about medical abuse in Guantánamo.
• Medical Malpractice 2: Specific and detailed refutation of Sen. Graham, reporting the actual known facts regarding one of the two cases he himself cited as most supporting his claims: the prisoner claims “as a result of his detention at the U.S. military prison at Guantánamo Bay, he is now confined to a wheelchair with two broken vertebrae. He said military personnel and interrogators stomped on his back, dropped him on the floor and repeatedly forced his neck forward soon after his arrival at the prison.” The so-called malpractice claim is that “he has been denied an operation that could save him from permanent paralysis”.
• Medical Malpractice 3: Contains further allegations about other prisoners at Guantánamo who were refused basic medical treatment in order to coerce their cooperation, all drawn from a legal brief filed to contest medical mis-treatment. As hilzoy and Katherine note, “bear in mind that none of this information would be available if Graham’s amendment had already been in force”.
• Caught On The Battlefield Sen. Graham argued that one reason to deny judicial review is that detainees are people “caught on the battlefield as the Nazis were caught on the battlefield”. This post demonstrates that there is vast and persuasive evidence that a number of the people held in Guantánamo were not caught in even the same country as any battlefield.
• Competent Tribunals: Sen. Graham describes the Guantánamo tribunals as “the Geneva Convention Protections on Steroids”. As readers of this blog know, it’s no such thing.
• Family Videos: Sen. Graham lampooned the courts for entertaining claims that Guantánamo detainees should be shown “family videos”. Here’s the actual, and quite horrible, story: Detainees reported that interrogators had previously impersonated defense counsel as a ruse to get detainees to talk to them; as a result the detainees mistrusted their actual lawyers. “The detainees … asked their lawyers to get videos showing that their families, or people they trusted, approved of these lawyers. The lawyers did so; the resulting DVDs contained less than seventeen minutes of material, combined. … All of this was done by counsel with security clearances, on equipment they had brought with them from the US”. They then submitted these materials to the government, asking that they be cleared so that they could be shown to the detainees, and noting that they would be traveling to Guantánamo in twelve days. … After various delays (… the government claimed that no one in all of Washington DC was capable of clearing the videos, that therefore they had to be sent to Guantánamo for clearance, and that transporting them would take two weeks), the attorneys were sent a message informing them of two things:
  

  (a) that the videos, etc. might not be cleared by the time they arrived, and

  (b) that if, on that visit, the detainees did not agree to be represented by them, the detainees would forfeit their right to counsel.”

  It was this Catch-22 which led to the lawsuit.

• More Frivolity: Now With Human Mops! Sen. Graham ridiculed the idea that a detainee “from a family of longstanding al-Qaida ties” and who had thrown a grenade that killed an army medic could be heard to request that his interrogators not use cruel, inhumane, or degrading treatment against him. Sounds awful, right? How about three years of near-solitary confinement (with extra added alleged physical torture) for a child? And here’s the detainee’s allegation as to his recreational activities:
  

  He was left in these stress positions for a period of hours, and because he was not allowed to use the washroom, eventually urinated on the floor and upon himself and his clothing. Military police then poured a pine oil solvent onto the floor and onto Petitioner. With Petitioner on his stomach and his hands and feet cuffed together behind his back, they used Petitioner as a human mop, dragging him back and forth through the mixture of urine and pine oil. After he was returned to his cell, Petitioner was not allowed a change of clothes for two days.

If even half this stuff is true, do we really need to ensure that it be allowed to happen without any exterior checks — which is what will happen if the Graham Amendment closes off judicial review?