ACLU Letter to Congress Urging Opposition to Gutting of McCain Amendment

Document Date: December 14, 2005




December 14, 2005

RE: Proposed Changes to the McCain Anti-Torture Amendment and the Graham Court-Stripping 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 proposed changes to the McCain amendment and the Graham amendment to the Defense Department authorization bill. Those changes limit liability for government officials violating government-wide prohibitions against torture and abuse, even when used against U.S. citizens in federal custody within the fifty states; 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 the conference bill contains these changes, 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 and abuse. For the first time in its history, Congress would authorize the use of evidence obtained by torture and would provide special rights for government officials who commit torture or abuse. 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.

Specifically, the proposed changes to the McCain amendment and Graham amendment 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 authorized the use of evidence obtained by torture or abuse. Under this proposal, 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.

Provide special rights for government officials who committed torture or abuse. Ironically, the McCain amendment has no enforcement provision, but the proposal would provide a defense to persons who violate it. Under the proposal, government officials would be able to defend themselves by showing that a “reasonable person” would not know that he or she was violating the law by torturing or abusing a person. A proposal in the House of Representatives goes even further and would indemnify government officials who engage in torture and abuse. This means that the federal government alone would be paying the legal bills and damages if a government official decides to torture or abuse someone. Moreover, because the McCain amendment is not limited to foreign citizens being held overseas, federal government officials would gain these special rights even when torturing or abusing a U.S. citizen being held by the federal government in one of the fifty states.

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. Despite the Supreme Court holding that persons held at Guantanamo Bay have due process protections under the Constitution, the proposal would expand the 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 would also be revised 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.

Congress has a choice on which direction it will take on the government engaging in torture and abuse. Congress still has an unprecedented opportunity to pass the McCain amendment, in the same form it passed the Senate by a 90-9 vote, and take an important step towards restoring the rule of law and stopping forever the federal government from torturing and abusing persons. We strongly urge you to choose this path and pass the McCain amendment without changes, and without the Graham amendment.

We strongly urge you to reject these proposed changes to the McCain amendment and Graham amendment that would, for the first time, put Congress on the side of the federal government providing special assistance or defenses for government officials engaged in torture, and make evidence obtained by torture part of the secret evidence used by the federal government to detain persons indefinitely.

If these proposed changes are in the final Defense Department authorization conference bill, the ACLU strongly urges you to vote “no” on the conference bill.


Caroline Fredrickson
ACLU Washington Legislative Office

Christopher E. Anders
Legislative Counsel
ACLU Washington Legislative Office

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