"We do not torture" -- except when we do

Justice Department lawyers say the McCain torture ban doesn't apply at Guantanamo -- and they may be right.

Published March 3, 2006 1:59PM (EST)

In order to win the White House's acquiescence to John McCain's torture ban, senators packaged it with legislation that denied detainees at Guantánamo Bay and elsewhere access to U.S. courts except to appeal the verdicts of military tribunals. The result of that compromise has just become clear: Because detainees at Guantánamo have been denied broad access to the federal courts, they may have no recourse to the torture ban's protections.

The reality struck Thursday, during a hearing in the case -- for now -- of Mohammed Bawazir, a Yemeni national now in custody at Guantánamo. Bawazir's lawyers allege that guards at Guantánamo have abused him in the name of ending his hunger strike by shackling him to a chair, ramming a large feeding tube through his nose, pumping in food with large quantities of water, and then leaving him shackled to the chair for so long that he soiled himself. As the Washington Post reports, U.S. District Court Judge Gladys Kessler said Thursday that she was "extremely" disturbed by the allegations of "cruel" and "disgusting treatment," and that they could violate bans on torture in U.S. and international law. She also said that she was skeptical of the information about Bawazir's treatment she was getting from military officials at Guantánamo. At one point during Thursday's hearing, Kessler told a Justice Department lawyer: "I know it's a sad day when a federal judge has to ask a DOJ attorney this, but I'm asking you -- why should I believe them?"

One might say it's a sadder day still when a federal court finds that it may be powerless to enforce a ban on torture. But that's the argument Justice Department lawyers are making before Kessler, and some human rights activists say that they're probably right. "It's a correct reading of the law," Tom Malinowski of Human Rights Watch tells the Post. "The law says you can't torture detainees at Guantánamo, but it also says you can't enforce that law in the courts."

The White House wanted legislation that barred detainees from U.S. courts, and Thursday's hearing certainly shows why. As Thomas Wilner, a lawyer who represents other detainees, tells the Post: "This is what Guantánamo 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."

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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