Detainees' lawyers said they believed that the tougher approach to the hunger strikes was related to the passage in Congress of measure intended to curtail the detainees' access to United States courts.
Federal district courts have put aside most lawyers' motions on the detainees' treatment until questions about applying the measure have been litigated.
"Because of the actions in Congress, the military feels emboldened to take more extreme measures vis-a-vis the hunger strikers," said one lawyer, Sarah Havens of Allen & Overy. "The courts are going to stay out of it now."
The above is from Tim Golden's "Tough U.S. Steps in Hunger Strike at Camp in Cuba" in this morning's New York Times. You may read that headline and think, "Surely this isn't reflective of the article, surely 'tough' isn't as deep as the article actually goes?" It is as deep as the article goes and people would do well to remember (or in some instances, to know) that Golden made quite a name for himself as the water boy for government before he showed up with a few "breaking stories" in 2004. He's back to his roots with this article.
". . . passage in Congress of a measure . . ." is about as deep as Superficial Boy can get. That's the Graham/Levin Amendment. Not that he wants to tell you that. We already know about it in this community. While the Times was back slapping and editorializing about the McCain amendment, we were a little more focused than Golden is today (or the Times is ever).
This article would be the perfect opportunity to explain Graham/Levin (or maybe the Times thinks their editorials cover it?). That's tossed out the window along with everything else.
So let's get the overview that Golden can't provide you (waterboys aren't known for their ability to do heavy lifting) by noting Michael C. Dorf's "The Senate Votes to Curb Habeas Corpus Petitions by Guantanamo Bay Detainees: How the Bill Threatens the 'Unwritten Constitution'" (FindLaw.com):
But if Congressional oversight of the treatment of detainees is welcome, the core of the Graham/Levin Amendment is not. It curtails a different, and equally important, form of oversight: judicial review of decisions by military courts. The Amendment's key provision would strip the federal courts of jurisdiction to entertain habeas corpus petitions from Guantanamo Bay detainees--except in two circumstances.
First, a person determined to be an enemy combatant by a combatant status review panel could bring a challenge to that determination, on the grounds that the panel failed to apply the Defense Department's rules, or that the application of those rules violated the Constitution or a federal statute.
Second, there is an exception concerning military commissions. In the Administration's view, a determination that a detainee is an enemy combatant makes him eligible for a war crime prosecution before a military commission, which can sentence a convicted detainee to imprisonment or death. Under the Graham/Levin Amendment, a detainee who has been convicted by a military commission, and sentenced to death or ten years or more in prison, can bring a challenge to the military commission proceedings on the same grounds available for challenging combatant status determinations: that the Defense Department failed to apply its own rules, or that the application of those rules violated the Constitution or a federal statute.
With respect to both these exception, habeas review of a detainee's petition can occur only after the proceedings he wishes to challenge have run their course. That feature of the Amendment may require, among other things, the Supreme Court's dismissal of the Hamdan case, because Hamdan filed his petition objecting in advance of his pending trial by a military commission, and the crux of that petition challenges the constitutionality of, and statutory authority for, the commission. (Hamdan has already received a combatant status review panel determination deeming him an enemy combatant; thus, even under the Graham Levin Amendment, he could now pose a challenge to that separate determination.)
What the Graham/Levin Amendment Does Not Allow
Perhaps the oddest feature of the Graham/Levin Amendment is that it does not provide any habeas corpus review for the one category of persons who may, under an expansive reading of Rasul, be constitutionally entitled to it: Detainees who are either not given a combatant status determination, or who are determined not to be enemy combatants but held anyway.
The Graham/Levin Amendment would, as a practical matter, allow such detainees to be held indefinitely, without any judicial oversight. Granted, the military may presently intend to afford all detainees combatant status review, and to release all prisoners found not to be enemy combatants, but if so, where is the harm in preserving habeas for someone who is not afforded such treatment?
Another effect of the Graham/Levin Amendment would be to make habeas corpus unavailable for detainees who object to the conditions of their confinement. Thus, a prisoner cannot get into federal court by claiming (or presenting evidence) that he is being subject to torture or otherwise degrading treatment.
In theory, Graham/Levin was a vile thing. In practice, it's even more vile or, as Golden prefers to see it, "tough." Tough. What an interestingly vague, superficial word. But Golden top loads with the vauge and superficial. Those who make it past all the "military officials" say this and say that to the end of the article may encounter a shock:
Mr. Odah said he heard "screams of pain" from a hunger striker in the next cell as a thick tube was inserted into his nose. At the other detainee's urging, Mr. Odah told his lawyers that he planned to end his hunger strike the next day.
Another lawyer, Joshua Colangelo-Bryan, said one of his three Bahraini clients, Jum'ah al-Dossari, told him about 10 days ago that more than half of a group of 34 long-term hunger strikers had abandoned their protest after being strapped in restraint chairs and having their feeding tubes inserted and removed so violently that some bled or fainted.
"He said that during these force feedings too much food was given deliberately, which caused diarrhea and in some cases caused detainees to defecate on themselves," Mr. Colangelo-Bryan added. "Jum'ah understands that officers told the hunger strikers that if they challenged the United States, the United States would challenge them back using these tactics."
Not quite the pie-in-the-sky "tough" that Golden's been striving for throughout the article. And "tough" could have been refuted early on by going to any human rights organization but, for all the "military officials" say nonsense, Golden apparently couldn't locate a human rights organization to provide a comment.
He's also not able to find any former detainees or attorneys for former detainees who can provide any alternative to the "military officials" statements. Considering that "military officials" have whitewashed and under reported the numbers of the hunger strike, minimized it, Golden's sense of 'trust' in what they tell him is a rather elastic sense of trust.
Here's some reality the water boy who's been seen by too many as the golden boy for over a year now can't tell you about, via Amensty's "Guantánamo: A life sentence of suffering and stigmatization:"
Four years since the first "war on terror" transfers to Guantánamo, some five hundred men from around 35 nationalities remain held, most without charge or trial. Some allege they have been subjected to torture or other cruel, inhuman and degrading treatment. In desperation, some detainees have attempted suicide. Others have gone on prolonged hunger strikes, being kept alive only through what they have described as painful forced feeding measures.
In Golden's article, you won't find anything from the Center for Constitutional Rights either. Apparently Golden hasn't heard of them? Or maybe water boys are just well trained to carry the water for one team only and Golden's serving "TEAM USA! USA!"?
I'm not seeing it listed on the home page, but Ruth passed on that Michael Ratner (Center for Constitutional Rights) was a guest on Wakeup Call this week. While Golden's sniffing and panting over the crotches of "military officials" who make "tough" calls, members would probably be better off going elsewhere for information.
Strapped to chairs and force-fed. Golden thinks there are two sides to crimes against humanity. He's real good at telling you what "military officials" say, he just can't tell you too much about what's going on. Those apparently pesky human rights are something left for the editorial board to stumble across months from now.
For anyone reading the excerpts here and thinking, "Well Golden doesn't seem to have done that bad of a job" -- read the full article. We've mined for the golden nuggets in the excerpts. The article is awash in the sewage of "military officials" say this and say that. At one point, he even gets quotes from the maker of the chair used to restrain prisoners. This is a shameful article. (And we'll note it's by Golden or "Golden" -- meaning editorial input could have weakend a stronger article.)
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