On July 20, 2007, the Court of Appeals for the D.C. Circuit issued a ruling in two Detainee Treatment Act (DTA) petitions that, while ostensibly giving attorneys access to all government information for the DTA hearings, would also withhold key evidence that would likely point to torture of detainees. The ruling also includes a new protective order that would drastically curtail the ability of all attorneys to work with clients at Guantánamo and erodes attorney-client privilege.
The Court of Appeals acknowledged that the government’s failure to comply with its own Combat Status Review Tribunal (CSRT) procedures reinforces concerns about the adequacy of the CSRT process as a substitute for habeas corpus. But it also stated that “highly sensitive information” – likely to be information concerning the torture of detainees – can be withheld from attorneys.
The new protective order, issued as part of the ruling in Parhat v. Gates and Bismullah v. Gates, would:
• Allow the U.S. government to withhold “certain highly sensitive information” from attorneys, with certain classified information only offered on a “need to know” basis;
• Allow legal mail between attorneys and detainees to be inspected;
• Let the government redact from inspected mail any information that doesn’t specifically refer to events leading to the detainee’s capture and the conduct of the CSRT’s, including information relating to fears of repatriation to torture; and
• Allow only two attorney visits with detainees to obtain representation authorization (but would not require a detainee to sign a document giving authorization as the government had wished). This can be difficult when dealing with people who have been traumatized and have significant reasons not to trust the people they meet with.
So, of what use is an executive order against torture when a victim can't even get access to evidence of such treatment?
Further, there is no word yet on whether Bush's new order affects the section of the Military Commissions Act of 2006 that gives American government perpetrators of torture immunity from prosecution and since Bush conveniently opted out of the International Criminal Court in 2003, it's extremely unlikely that any CIA agent will ever be prosecuted for the war crime of torture.
Just more smoke and mirrors from Bush's legal advisors.
Related: The US isn't the only country that's trying to rework the ban on torture. See European Court of Human Rights: Ban on torture is absolute and universal.