Catch 22: Torture banned at Gitmo, but law can't be enforced there

The good news: Detainees at Guantanamo Bay cannot be tortured under the provisions of Sen. John McCain's recent legislation banning torture.

The bad news: That law cannot be enforced at Gitmo because of a provision in the same law that bans access to the U.S. court system for detainees at Gitmo unless it is to appeal their enemy combatant status determinations and convictions by military commissions.

Bush administration lawyers, fighting a claim of torture by a Guantanamo Bay detainee, yesterday argued that the new law that bans cruel, inhuman or degrading treatment of detainees in U.S. custody does not apply to people held at the military prison.

In federal court yesterday and in legal filings, Justice Department lawyers contended that a detainee at Guantanamo Bay, Cuba, cannot use legislation drafted by Sen. John McCain (R-Ariz.) to challenge treatment that the detainee's lawyers described as "systematic torture."

Government lawyers have argued that another portion of that same law, the Detainee Treatment Act of 2005, removes general access to U.S. courts for all Guantanamo Bay captives. Therefore, they said, Mohammed Bawazir, a Yemeni national held since May 2002, cannot claim protection under the anti-torture provisions.

(snip)

U.S. District Judge Gladys Kessler said in a hearing yesterday that she found allegations of aggressive U.S. military tactics used to break the detainee hunger strike "extremely disturbing" and possibly against U.S. and international law. But Justice Department lawyers argued that even if the tactics were considered in violation of McCain's language, detainees at Guantanamo would have no recourse to challenge them in court.

So, even if someone at Gitmo is tortured, that person has no legal remedy available either to report it or to stop it. And while that seems ludicrous to most observers, even critics agree that nothing short of new legislation can change the situation.

"Unfortunately, I think the government's right; it's a correct reading of the law," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "The law says you can't torture detainees at Guantanamo, but it also says you can't enforce that law in the courts."

Thomas Wilner, a lawyer representing several detainees at Guantanamo, agreed that the law cannot be enforced. "This is what Guantanamo was about to begin with, a place to keep detainees out of the U.S. precisely so they can say they can't go to court," Wilner said.

So, it looks like torture is out...that is, unless the detainee is at Gitmo or the President says it's a matter of national security. And we all know that the President is a man of his word, right?

So much for the ballyhooed anti-torture legislation.

Ain't it great to be an American? Ugh.