Another Law Not Worth the Paper It’s Written On

Both the Washington Post and the New York Times cover a new wrinkle in the twisted tale of Guantánamo Bay's detainees - but only the Post really gets it.

Both the Washington Post and the New York Times write today about a Guantánamo Bay detainee’s claim in court that he has suffered what his lawyer is calling “systematic torture.”

The case is particularly interesting because Mohammed Bawazir is basing his charges on the Detainee Treatment Act of 2005, the bill that John McCain fought for at the end of last year and that was meant to ban for good any cruel, inhuman or degrading treatment of detainees in U.S. custody.

The only problem is that the same bill also stipulates, apparently, that prisoners at Guantánamo aren’t legally allowed to appeal to U.S. courts with their complaints.

U.S. District Judge Gladys Kessler even said yesterday that she found the allegations — which involve military guards force feeding hunger striking detainees by shoving tubes down their noses and mouths — “extremely disturbing” and possibly against U.S. and international law. But even if these tactics fall into the cruel treatment McCain’s law was meant to stamp out, Justice Department lawyers reminded the judge that according to the law detainees at Guantánamo would have no recourse to challenge them in court.

The Post fully grasps the paradox at the heart of the story — a rule meant to protect detainees could not actually be used by the detainees.

It quotes Tom Malinowski, Washington advocacy director for Human Rights Watch, who says that, “Unfortunately, I think the government’s right; it’s a correct reading of the law — the law says you can’t torture detainees at Guantánamo, but it also says you can’t enforce that law in the courts.”

A lawyer for one of the detainees concurs: “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.”

Without exclaiming it outright, the Post is clearly expressing its own sense of the law’s absurdity.

The Times, though, seems to miss the story. The focus of its article on the hearing ends up being on the government’s argument that the force feeding was not torture and that, anyways, Bawazir, who they claim is an al-Qaeda operative, is lying. Only as a kind of afterthought does the Times mention the government’s stipulation that the case should not be in the courts at all — to our minds, the most important aspect of the whole story.

The fact that the government has given a right and then taken it away, all in one breath, is significant. The administration, led by Vice President Cheney, expended a lot of political capital to keep that bill from going into effect and then made a big deal out of finally relenting — remember the White House sit-down with McCain and Bush? McCain came off as a great defender of human rights by championing the law. What we learn today, in the Post story — but not really in the Times story — is that this appears to have been all one big farce.

Just what we need — one more law whose very wording contains the seeds of its own destruction. If that doesn’t merit press investigation, we don’t know what does.

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Gal Beckerman is a former staff writer at CJR.