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Attorneys Argue Senate Bills Would Allow for Lifelong Detention Without Trial, Torture Without Accountability

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As the debate on Capitol Hill continues over the Bush administration’s plan for the treatment of prisoners in U.S. custody, we take a look at what is not being discussed: how both proposed bills in the Senate strip away the right to habeas corpus and cut back the ability of rape survivors of to hold their perpetrators accountable. We speak with Michael Ratner of the Center for Constitutional Rights. [includes rush transcript]

New details have been revealed on the Republican divide over the Bush administration’s plan for the treatment of prisoners in US custody. Newsweek magazine reports the administration wants to maintain at least seven existing CIA interrogation methods for use against high-level detainees. The techniques include induced hypothermia; long periods of forced standing; sleep deprivation and so called “attention slapping.”

The administration is facing resistance from three key Republican Senators on the Armed Services Committee: John McCain, Lindsey Graham and John Warner. The three helped pass a measure last week affirming Common Article Three of the Geneva Conventions, which prohibits inhumane treatment.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: New details have been revealed on the Republican divide over the Bush administration’s plan for the treatment of prisoners in U.S. custody. Newsweek magazine reports the administration wants to maintain at least seven existing CIA interrogation methods for use against high-level detainees. The techniques include induced hypothermia, long periods of forced standing, sleep deprivation and so-called attention slapping.

The administration is facing resistance from three key Republican senators on the Armed Services Committee: John McCain, Lindsey Graham and John Warner. The three senators helped pass a measure last week affirming Common Article 3 of the Geneva Conventions, which prohibits inhumane treatment.

To talk about this debate over interrogation tactics, Michael Ratner, president of the Center for Constitutional Rights, joins us in our studio in New York. Welcome, Michael, to Democracy Now!


AMY GOODMAN: It’s good to have you with us. Talk about this debate that’s going on within the Republican Party.

MICHAEL RATNER: Well, what’s extraordinary about everything that’s going on now in Washington — you know, you just covered the Maher Arar case, and sadly none of it, none of it, would really stop what happened to Maher Arar, which is the taking of someone, outsourcing torture to another country, sending him to a place where he could be tortured. So I want to just start, that this is an important debate in Washington, but it’s not going to stop the tragic cases like Maher Arar, of which I think there’s many, many cases. I just want to make that clear.

The debate is really in Washington on three issues. One of them has not been covered at all. The first issue is what kind of interrogation techniques can be used. Can torture be used? Can you violate Common Article 3? Can you use those techniques you spoke about, including, I think, waterboarding, which is the mock drowning of somebody? And on those issues, McCain, Warner and Graham have taken a position that they don’t want those used. And so, we’re at loggerheads between two factions of the Republicans right now. I don’t know how it will come out. I certainly hope that McCain and Warner stick, and Graham, to their position on that.

But there’s two other issues going on, one of which has not been covered at all. One is, of course, the military commissions, and again the McCain bill, which is not the administration bill, is better on that as well. It doesn’t allow you to use evidence from torture. It makes sure that the defendant in a military commission is present at trial and gives a person more rights at a military commission.

But the third issue, which has not been covered, is, to me, very critical and is in both of the pieces of legislation. In both the administration bill and in the McCain-Graham-Warner bill, in both cases you abolish the writ of habeas corpus. The government, the Congress, is abolishing the writ of habeas corpus. The habeas corpus writ is the right to challenge your detention once you’re picked up by the United States. It would apply to Guantanamo. It would apply to everybody in Bagram. And it basically says that anybody picked up, now or in the future or who is there now, no longer has the writ of habeas corpus.

For some reason, for some peculiar reason, nobody is really covering this in the media. Yes, they’re covering the McCain debate over waterboarding and torture and somewhat on the military commissions, but not really the denial of the abolishment of the fundamental writ. If we look at Maher Arar, his is one of the cases. I mean, there may be Maher Arars — or are, as I know — in places like Guantanamo and other places in the world, and without an ability to bring those cases to court, the United States can continue or the administration can continue doing what it did to Maher Arar.

AMY GOODMAN: Now, again, maybe part of the reason we don’t hear much about this is a lack of understanding of writ of habeas corpus. I mean, it’s not even in English. Explain, Michael.

MICHAEL RATNER: Well, it actually comes initially out of the Magna Carta in 1215. And it had to do with when the king just believed he could pick up people anywhere in the world, throw them into a dungeon, never give them a court hearing, and you’d never hear from them again, essentially disappear them. Out of a long struggle for peoples’ rights, the writ of habeas corpus emerged. Then, when we wrote our Constitution in the United States, it was considered the fundamental right essentially against a police state and can only be suspended in cases of rebellion or things like that.

And what it really says is that if a king or the president picks me up anywhere in the world, that I have a right to go into court and say, “What are your reasons for detaining me?” It doesn’t say you have to be freed. But it says you have to come up — government — come up with a legal reason for detaining me. In other words, it takes detentions, disappearances and puts them into the light of a courtroom, where the government has to justify the detention.

That’s the fundamental right that we at the Center for Constitutional Rights won for those people at Guantanamo and which this congress and this president have continuously tried to beat back. We won it in 2004. We got a legislation that Congress had passed to try and get rid of it. We won that again in 2006. And now they’re trying to get rid of it again.

It’s really, Amy, the fundamental right that protects us against just arbitrary arrest and disappearance. It’s absolutely crucial. And so far, unfortunately — I just want to emphasize this — both the administration bill and the McCain bill abolish the writ of habeas corpus. And there should be a massive, massive public campaign about that. People can go to the Center’s website and get information about that and get to their senators and say, “Don’t abolish the writ.” This is the protection that will protect the Maher Arars in the world, that protect our Guantanamo detainees and protect people who are really disappeared all over the world.

AMY GOODMAN: No Democrats have stood up to defend habeas corpus?

MICHAEL RATNER: Oh, no. There are some. It’s happening. I mean, it’s just not in the public dialogue or discourse right now. But certainly within the Senate, there are Democrats who are extremely, extremely concerned by the abolishment of the writ of habeas corpus. The problem is, right now, of course, in an election year, Democrats feel they don’t want to necessarily oppose the administration on that issue. They are happy to see the Republicans and the Democrats fight about, you know, the use of torture, and they’re not really raising this issue. But let me just say, abolishment of the writ, those who abolish it will really go down in infamy as really taking away the fundamental constitutional right, a right that goes back to 1215.

I still believe that we have a chance of sustaining and allowing that writ to continue, but we are at an extremely serious juncture. This administration does not want courts examining what it does to people like Maher Arar or our clients at Guantanamo or what it’s doing around the world to detainees. And that’s why it wants to get rid of the writ. And it’s really a legal and political and moral outrage. You know, I couldn’t — in your story on Maher Arar, big tears — I have to tell you — just rolled down my eyes for him and what we did to this human being. And sadly, sadly, that’s only one of the cases. There are scores, if not hundreds, of cases right now, where people who are innocent or people who have not made any kind of attacks against the United States, but were picked up on flimsy evidence, like Arar was, are in detention and are unable to get any hearings in federal court. It’s really an outrage. And that Congress would now give this authority — would take this authority for habeas away is just a remarkable — it’s breathtaking when you think about it.

AMY GOODMAN: Michael Ratner, I asked Maria LaHood about this, your colleague at the Center for Constitutional Rights, but now that this Canadian report has come out, that has to be such an incredible embarrassment to both the Canadian government, but also the U.S. The only thing the U.S. government has protecting it now is that the U.S. press hardly picks up on this, right? Maher Arar was the Time newsmaker of the year in Canada. That was Canadian Time. His name is hardly known in this country. But the judge threw out the case here. Can you reinstate it?

MICHAEL RATNER: Well, we’re going on appeal on this case, so I would hope that the Court of Appeals sees through what this judge did. I mean, Maria’s point, that essentially they argue now that somehow this is going to hurt our relations with Canada is absurd. Canada has said exactly what happened. There was never really a threat there. It was an excuse to get rid of this case. But I would imagine that the circuit is going to reinstate this case. This really is the case that brings to the fore and to the foreground the illegality and the harm and the torture that is caused by our detention policies.

You know, one of the things about the Maher Arar case, when it came into the lower court, the district court, the judge in part of his opinion actually wrote that it may be okay or not unconstitutional to torture in the name of terrorism. This, to me, is how far this country has gone, that people, even federal judges, are willing to say that. We are so far away from what I consider to be civilized norms of a society right now, that Maher Arar’s case really stands for just the real terror that this country is now imposing, sadly, on people all over the world in detention.

AMY GOODMAN: Is it just the Republican debate that has opened up this discussion in the press around the issue of torture?

MICHAEL RATNER: Well, no. It’s not just the Republican debate. It’s certainly been helpful, because, you know, despite the fact that we have all been saying — everybody knows from the Rumsfeld techniques at Guantanamo to everything we’ve brought out, to many reports, that torture is, you know, the coin of the realm right now in this country, that sadly the Democrats and the press have been unwilling to take it on and label it what it is and really nail the people from Rumsfeld and others, who have approved it. And so, only now that the Republicans are standing up — a few of them — a little bit are we getting some courage in the press and some in the Democrats to stand up and say, 'Hey, guys. You know, we're torturing people. We’ve been doing it for five years. Maybe we shouldn’t.” But let me say, I have been appalled that for five years I’m living in a country that is openly torturing people and essentially proud of it. And despite that, there has been basically pipsqueaks out of the press and out of Congress. You don’t see them saying, “Stop this. Stop this. Stop this.”

AMY GOODMAN: Michael Ratner, we just have ten seconds. But whatever comes out, with the bill out of the Senate, out of the Congress, couldn’t President Bush just sign a signing statement, as he’s done more than 800 times, and not abide by whatever it was that was passed?

MICHAEL RATNER: He could certainly do a signing statement, like you said, and say, “I’m not going to enforce this bill. I’m still going to torture people.” It would be unconstitutional. It would be illegal. It would be essentially a war crime to do it, in my view. But the way this president has gone, my belief is that he has committed war crimes.

AMY GOODMAN: Michael Ratner, president of the Center for Constitutional Rights, thank you for joining us.

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