Introducing the “Torture Client Protection Act”
For those who love America, one simple thing is supposed to mark the political culture of this country as fundamentally fair and just: the role the law plays in providing protection and redress against the excesses, incompetence, and cruelty of government itself. We believe, deeply and instinctively, that government is sometimes so corrupt and ineffective that mechanisms are necessary to ensure that government officials are accountable for their actions. And, in order to ensure that accountability is real and not just symbolic, we have erected a network of laws to protect the citizenry from its powerful servants in Washington.
Take the Torture Victims Protection Act (“TVPA”), for instance. The TVPA was enacted by Congress to provide ordinary people with the right to sue government officials who commit or authorize others to commit torture where those officials have acted “under the color of” foreign law in doing so. Under the TVPA, an official acts “under the color of” foreign law by undertaking acts under the actual or apparent authority of that foreign nation’s legal system. What does that mean exactly? Well, according to the Supreme Court in Brentwood Academy (531 U.S. 288 (2001)), in the context of civil rights suits it is the court’s responsibility to determine, by taking all the relevant facts into account without using “rigid criteria,” whether an official’s conduct was made possible or facilitated by a foreign legal regime. An U.S. official need not have legal authority or hold office of any kind in a foreign legal system; all that is required is that the U.S. official’s actions or commands are carried out or enabled by a foreign legal regime.
The TVPA provides civil damages for those who can meet this flexible legal standard, and while it would be better if people were never tortured in the first place, the damages available under this law in theory ensure that torture does not go unpunished.
Unfortunately, when faced with difficult, critically important cases, courts have been unwilling to apply the TVPA in a legally defensible and responsible fashion. The Second Circuit Court of Appeals recently held that Maher Arar – a Canadian engineer that has never been charged with a terrorism-related crime – could not rely on the TVPA to sue U.S. government officials for their participation in a decision to ship him off to Syria to be interrogated and tortured. The Second Circuit’s majority opinion reads like a fine piece of sophistry, as thin, morally repugnant arguments are legion. Here’s the basic reason the court rejected Arar’s plea:
“The defendants are alleged to have acted under color of federal, not Syrian, law, and to have acted in accordance with alleged federal policies and in pursuit of the aims of the federal government in the international context. At most, it is alleged that the defendants encouraged or solicited certain conduct by foreign officials.”
The first problem is that this is not an adequate description of Arar’s key complaint against the U.S. government. Arar’s claim is that if U.S. officials conspired with Syrian officials to torture him, in doing so U.S. officials would be engaging in torture with the necessary aid of Syrian law and political institutions. Hence, they would have been acting, in an important sense, “under the color of” Syrian law. After all, the U.S. government sent Arar to Syria precisely because Syrian law provided the wide latitude to deploy ghastly measures against detainees unavailable under the laws of the United States. This is what Arar is claiming, and it is a legal blunder of the highest order to misrepresent his core grievance to make dismissing it easier.
But there is another, more vexing, problem. The Second Circuit’s analysis grants U.S. officials a free pass anytime they do not directly oversee the torture of U.S. citizens or other nationals on foreign soil. If U.S. officials were merely “encouraging or soliciting” torture, they would walk. And they could conceivably enjoy this “freedom to torture” even if they were present while Syrian officials removed fingernails or poured scalding water over the visage of a helpless subject. Remember, under the Second Circuit’s view, U.S. officials enjoy unqualified immunity unless they were in sole control of the torture; the gravity or depravity of the torture matters not one tiny bit. So, if a U.S. official was merely there, or only encouraged her Syrian counterparts to slice open some defenseless human being, well, sorry folks, the TVPA would be of no use at all.
I am not the only one disgusted by the Second Circuit’s abysmal legal reasoning. Consider the sharp words of rebuke in Judge Calabresi’s dissent:
“In its utter subservience to the executive branch, its distortion of the Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the TVPA and of § 1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray. It does so, moreover, with the result that a person – whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law – is effectively left without a U.S. remedy.”
This is a damning indictment of the majority’s view. In light of how viciously the Second Circuit has gutted the TVPA, perhaps the statute itself should be recast, given a more appropriate description? From now on, we shall call it the Torture Client Protection Act, because that’s exactly what it is. And who is the client? Oh, well, that’s technically the United States of America. Yes, dear friends, we are the protected client, the party that may procure torture without ever being called to account for it.
Related posts: