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. (more…)

Last week the Washington Post printed two letters from different sources who had spent time on the ground in Afghanistan.  They came to very different conclusions about the American presence there.

First, there is the letter from Matthew Hoh, the former Marine captain who had fought in Iraq and had recently taken a temporary foreign service assignment in Zabul province.  One State department official referred to this area as, “one of the five or six provinces always vying for the most difficult and neglected.”  Hoh had developed great misgivings about the war and had become so disillusioned that he chose to resign.  Hoh wote in his resignation letter,

I fail to see the value or the worth in continued U.S. casualties or expenditure of resources in support of the Afghan government in what is, truly, a 35-year old civil war…. The United States presence in Afghanistan greatly contributes to the legitimacy and strategic message of the Pashtun insurgency.

Matthew Hoh has served his country bravely in combat and he has responded to a policy with which he disagreed by making the honorable choice to resign. His observations about the situation in Zabul province merit serious consideration.  I wish that many others in the previous administration who had serious misgivings about policy but waited to reveal them until after leaving office had, instead, followed Hoh’s example. (more…)