Levin Statement on Conference Agreement on Treatment of Detainees

Friday, December 16, 2005

WASHINGTON – Sen. Carl Levin, D-Mich., released the following statement on the provisions of the defense conference agreement addressing the treatment of detainees. This legislative package includes both the McCain amendment and the Graham-Levin amendment.

Throughout the conference, we were pressed by Administration officials and their allies in the House to make changes to the Senate provisions on the treatment of detainees. We were asked to strip the courts of jurisdiction over pending cases; to eliminate any review of the constitutionality of procedures established by the Department of Defense; to expand the habeas corpus limitations to detainees held anywhere in the world; to expand these provisions to strip legal rights from detainees held by the CIA and other agencies; to bar detainees from ever bringing any legal action challenging any aspect of their detention; to prohibit the courts from providing legal relief for detainees who are found to be improperly held; and to grant immunity to individuals engaged in detention and interrogation operations. We successfully opposed all of these changes.

The jurisdiction-stripping provision in the Graham amendment initially approved by the Senate over my objections would have applied retroactively to all pending cases in federal court – stripping the courts of jurisdiction to consider pending cases, including the Hamdan case now pending in the Supreme Court. The revised amendment that we were able to work out with Senator Graham – the so-called Graham-Levin-Kyl amendment – does not apply to or alter any habeas case pending in the courts at the time of enactment. The conference report retains the same effective date as the Senate bill, thereby adopting the Senate position that this provision will not strip the courts of jurisdiction in pending cases.

The conference report does make two changes to the Senate language which, in my view, are problematic.

First, the Senate-passed provision would have established an exclusionary rule prohibiting status review tribunals from considering evidence obtained through “undue coercion.” I was troubled by the phrase “undue coercion,” because of the implication that there might be such a thing as “due” – or appropriate – coercion. I do not believe that coerced testimony is ever appropriate.

We were able to modify the provision in the conference report to eliminate the word “undue” and address any coercion at all – an improvement over the Senate language. At the same time, however, the provision was modified so that it only provides for an “assessment” of whether there was any coerced testimony and requires the tribunal to decide (subject to review in the courts) if there is any probative value to such testimony.

It is a centuries-old principle of Anglo-American law, enshrined in the Fifth Amendment to the Constitution, that no person shall be compelled to be a witness against himself. Regardless whether this rule of law is expressly incorporated into the procedures for status review tribunals, I hope and believe that the courts will enforce the rule of law and ensure that evidence obtained through coercion is excluded from any administrative or judicial proceedings.

Second, while the Senate-passed provision would have eliminated federal court jurisdiction only for habeas corpus actions, the conference report would eliminate such jurisdiction for “any other action against the United States or its agents” relating to detention at Guantanamo Bay, Cuba.

This new language is limited to detainees who either: (1) remain in military custody at Guantanamo; or (2) although they have been released from Guantanamo, have been determined by the United States Court of Appeals (subject to Supreme Court review) to have been properly detained as enemy combatants. Nonetheless, it places yet another limitation on the avenues of legal recourse available to detainees.

In sum, Administration officials and their allies in the House have sought at every turn to deny any legal right or recourse to detainees at Guantanamo and elsewhere. I do not believe that we should have gone down the road of limiting legal remedies for detainees in the manner that we did. However, we have done our best to preserve a meaningful opportunity for detainees to challenge the legality of their detention in federal court. While we have not succeeded as well as I would have liked, the provision in the conference report does not, in my view, justify opposing a defense authorization bill which includes both the many provisions needed by our troops in a time of war and the McCain amendment barring cruel, inhuman, or degrading treatment or punishment. Indeed, I am pleased that we were able to work with Senator McCain to preserve his amendment intact and to avoid any changes elsewhere in the detainees title of the bill that would have undermined his amendment.