Sen Levin: Revisiting The Military Commissions Act

"The Common Theme Is Hypocrisy"

The following is the opening statement delivered on April 27th to the Senate Armed Services Committee. CLICK TO VIEW VIDEO OF ITS DELIVERY VIA TRUTHOUT.ORG

America's standing in the world has taken a nosedive since the world embraced us after 9/11. According to a recent poll conducted by the Program on International Policy Attitudes, 67% of the people surveyed across 25 countries disapprove of the U.S. handling of Guantanamo detainees. The Program Director explained: "The thing that comes up repeatedly is not just anger about Iraq. The common theme is hypocrisy. The reaction tends to be - You were a champion of a certain set of rules. Now you are breaking your own rules."

The Secretary of Defense recognized this problem last month when he acknowledged that he had recommended closing Guantanamo because "there is a taint about it."

America at its best is a beacon for human rights and human liberty, and that's how we like to see ourselves. But much of the world sees us in a very different way when we fail to live up to the standards we profess. For us, the symbol of American values is the Statue of Liberty. For much of the world, it is that horrific photograph of a hooded prisoner at Abu Ghraib, standing on a box, strung up with wires.

It's no doubt hard to care about due process for people like Khalid Sheikh Mohammad and Abu Zubaydah. But, as Senator Graham said at the time of our trip to Guantanamo to observe the CSRT for Khalid Sheikh Mohammad, it's not about them. It's about us. If we fail to uphold our own values, we undermine our own security.

There are many reasons not to allow abuse of detainees or the use of coerced testimony B it's morally wrong, it produces unreliable information, it violates domestic and international law, it undermines the support we need in the world community to win the war against terrorism, and it jeopardizes our own troops if they are captured. But there is also this: people are less likely to believe what we say about our detainees if they have been abused. Even when an admitted terrorist like Khalid Sheikh Mohammad confesses to the most heinous of terrorist acts, the world focuses far too much on how we treated him and not nearly enough on what, by his own words, he did to us.

The Administration would like us to believe that detainees' allegations of abusive treatment are fabrications, based on al Qaeda training manuals.

But listen to what our own people at Guantanamo were saying. In late 2002, FBI personnel at Guantanamo objected to aggressive military interrogation techniques, describing them as "coercive" and "torture" techniques. Law enforcement personnel questioned the legality of these techniques and told FBI officials back in Washington "you won't believe it." And a Defense Department investigation led by Lt. General Randall Schmidt found that the use of these techniques constituted "abusive treatment."

Last September, this Committee approved, on a bipartisan 15-9 vote, a bill that would have helped address the problems caused by our treatment of detainees by establishing new procedures for trying detainees, consistent with the Supreme Court's ruling in Hamdan v. Rumsfeld. However, this bill was never taken up by the full Senate. Instead, the Administration persuaded a majority of Congress to:

• narrow the accepted definitions of "cruel and inhuman treatment";

• authorize the Administration to unilaterally redefine its obligations under the Geneva Conventions;

• allow the use of hearsay and coerced testimony in criminal trials of detainees;

• insulate senior administration officials from accountability for detainee abuses;

• bar detainees from ever bringing any legal action challenging any aspect of their detention; and

• prohibit the courts from providing legal relief for detainees who are found to be improperly held.

Most detainees will never be tried by a military commission, so they will not receive even the limited rights provided by the MCA. Under procedures established by the Administration for conducting Combatant Status Review Tribunals (CSRTs) at Guantanamo, these detainees can be detained for life as an enemy combatant on the basis of coerced testimony and hearsay evidence, without having a lawyer, without knowing what the evidence was against him, and therefore, without having a reasonable opportunity to disprove that evidence.

In proceedings in federal district court in 2004, Justice Department attorneys went so far as to take the position that the Executive branch has the authority to unilaterally detain as enemy combatants "[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but really is a front to finance al Qaeda activities," or "a person who teaches English to the son of an al Qaeda member." The Administration's definition of the term "enemy combatant" does not even require that the support provided to terrorist activities be knowing or intentional.

Professor Mark Denbeaux of Seton Hall University, who will be testifying here, has reviewed the publicly-available records of CSRTs conducted at Guantanamo. Professor Denbeaux found among other things that: the government never called a single witness at any of the 393 CSRT proceedings for which full or partial records have been released; and that for 93 percent of the CSRT hearings, the detainee was not provided access to any of the classified or unclassified evidence relied upon by the government to determine his status. Professor Denbeaux also reports only 5 percent of the Guantanamo detainees were captured by U.S. forces on the battlefield, compared to 86 percent who were apprehended either by Pakistan or the Northern Alliance and turned over to the United States, at a time when the United States offered large bounties for the capture of suspected terrorists.

Last week, I received a letter from a number of human rights groups suggesting that the CSRT process is so badly flawed that it cannot be fixed and that the only appropriate remedy is the restoration of habeas corpus jurisdiction in the federal courts. I opposed the habeas corpus limitations in last year's Military Commissions Act, because I believe that habeas corpus jurisdiction in the federal courts provides an important check on the misuse of executive branch power.

However, I cannot agree with those who suggest that we should oppose any reform of the CSRT process. Even if Congress were to repeal last year's provision restricting habeas corpus jurisdiction - and remembering that after five years of litigation, and multiple Supreme Court rulings in favor of detainee rights, no detainee has yet received a hearing on the merits in the federal courts - it is not clear whether such a hearing would ever take place, or how many more years of litigation would be required to achieve that result. Even if the courts ultimately rule in favor of the detainees as they have in the past, the likely result would be further action by either Congress or the executive branch B leading to more litigation and delaying a hearing on the merits still further.

I believe that the current CSRT process falls short of the Supreme Court requirement that an alternative to habeas corpus must be adequate and effective to test the legality of a person's detention. It fails to provide the protections that we would insist upon for our own troops, fails to meet our standards as a nation, and undermines our position in the world. If so, we have an obligation to act now to establish a process that we can defend.

I look forward to the testimony of our witnesses.

ENDS

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