Thomas R. Pickering is a member of the Constitution Project’s Task Force on Detainee Treatment. He was undersecretary of state for political affairs from 1997 to 2001 and served as ambassador and representative to the United Nations from 1989 to 1992. Ambassador Pickering is also a member of the Partnership for a Secure America Advisory Board. This article was originally published in the Washington Post.
America Must Atone for the Torture it Inflicted
It’s never easy in this volatile world to advance America’s strategic aims. For more than four decades, in the service of Democratic and Republican presidents, it was often my job to persuade foreign governments to adhere to international law and observe the highest standards of conduct in human rights — including the strict prohibition of torture. A report released Tuesday by an independent task force on detainee treatment (to which I contributed) makes it clear that U.S. officials could have used the same advice. (more…)
It is a good thing that that Liz Cheney, the daughter of former Vice President Dick Cheney, never tried to enlist in the U.S. military. Judging by her recent actions it appears she would never be able to say the oath of enlistment with a straight face. I mean the part where one swears to protect and defend the U.S. Constitution, which includes little things like subsequent amendments, such as those in the Bill of Rights.
What I refer to is when she and Bill Kristol, via their “Keep America Safe“ campaign, accused nine lawyers in the Justice Department, who had represented Guantanamo detainees of being the “al-Qaida Seven,” of working in the “Department of Jihad,” Perhaps Cheney and Kristol are simply exercising their First Amendment right to say anything that gets them on a talk show. After all, the right to cynically accuse someone of being a terrorist is protected under the Constitution. Unfortunately, for the rest of us, in so doing they trample underfoot other Constitutional rights that benefit all of us.
This is my last post for 2009 I thought I would write about Afghanistan but on second thought I will, no doubt, be doing that quite a lot during 2010. Thanks to the Obama Administration’s surge strategy Afghanistan will, from a blogging viewpoint, be the gift that keeps on giving.
So, as we contemplate whether 2010 will be better or worse let’s take a moment to consider 2009. In the spirit of Dave Barry’s classic annual year in review column let’s acknowledge, albeit with some poetic license commentary by moi, a few of the significant events that made, however briefly, the headlines.
Although it started on Dec. 28 2008 the month of January saw massive Israeli air strikes and a ground force invasion of the Gaza Strip. Heavy ﬁghting took place in Gaza City between the Israeli forces and Hamas. At least 1300 Palestinians were killed. On Jan. 17 Israeli Prime Minister Ehud Olmert announced a unilateral ceaseﬁre in the Gaza Strip, declaring that Israel has achieved the goals it set when launching the military operation. On Jan. 21 Israel completes its troop withdrawal from the Gaza Strip.
Also that month President Barack Obama signed executive orders closing the US detention camp at Guantánamo Bay, Cuba, within a year; closing the CIA’s secret prisons; requiring a review of military trials for terror suspects; and requiring all interrogations to follow the non-coercive methods speciﬁed in the Army Field Manual.
Of course, nobody knew back then that the camp would end up in Illinois. One can only hope that the inmates are not too acclimated to the Caribbean climate to adjust to a midwest winter.
On Jan 27 Hama declared that it previously was just kidding and broke the ceaseﬁre by attacking an Israeli frontier patrol. Israel immediately responded that it lacks a sense of humor and renewed its air strikes on the Gaza Strip border with Egypt.
On Feb. 3 Iran launched its ﬁrst domestically built satellite into orbit. Iran stated that the satellite is meant for research and telecommunications purposes, but Western states express concern that the technology could be used in the development of ballistic missiles. The U.S. intelligence community, estimating that Iran will show the same swift progress with its missiles that it did with its nuclear program, predicted the next flight will be in 2040.
On Feb. 6, renewing their classic rivalry, a British and a French nuclear submarine collided in the middle of the Atlantic Ocean. Political leaders from both countries sighed in relief that it was merely submarines and not their respective football fans that collided. (more…)
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…)
President Obama is in something of a pickle. Federal courts have ordered that 21 photos of American soldiers abusing prisoners in Iraq and Afghanistan must be released to the public. The Obama Administration has asked the Supreme Court to step in to prevent the release of these photos, but Congress has an even surer way of keeping them away from the public’s scornful gaze. Congress is considering a new law that would give the Secretary of Defense the sole and exclusive right to determine whether these photographs will ever be released to the American people. And it gets worse: Mr. Obama supports this insane and unconstitutional measure.
Let’s address, with measured haste, the obvious: Obama has taken a hypocritical position on the release of these photographs. He campaigned under the much lauded and little understood banner of “change,” a vague yet noble set of aspirations that is clearly at odds with the stance he has taken on releasing these records of human abuse. “But has our President changed his mind for a good reason?,” you earnestly ask. Well, Obama has apparently accepted the Pentagon’s view that releasing these photos would put American troops in unnecessary danger and serve as an effective recruiting tool for Muslim extremists.
So there it is, the Obama Administration’s view in a nutshell: We can’t talk have a long, hard look at these photos because that would mean “unnecessary danger” for our beloved troops. (more…)
Take a moment, dear friends, to consider Judge Milan Smith’s sentiments about the practice of detaining Americans as “material witnesses” to terrorist activities without formally charging them with a crime:
“We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”
Those words were taken from in al-Kidd v. Ashcroft, a decision by a Ninth Circuit panel holding that John Ashcroft may be sued for his participation in detaining suspected terrorists or terrorist affiliates under the federal material witness statute. In particular, the court held that:
1. (absolute immunity) Ashcroft is not entitled to absolute immunity from suit as representative of the United States government because in allegedly detaining al-Kidd, Ashcroft was engaging in investigative conduct, not purely “prosecutorial” conduct of the type for which officials receive absolute immunity from third-party liability.
2. (rights violations) Ashcroft may be sued for allegedly violating al-Kidd’s Fourth Amendment rights against unlawful detention and statutory rights afforded al-Kidd under the federal material witness statute because it is possible that Ashcroft did play a critical role in al-Kidd’s detention.
However, Ashcroft cannot be sued on the theory that he played a role in determining the allegedly harsh conditions of al-Kidd’s confinement under the high-bar for such allegations set out in the Supreme Court’s Iqbal decision (which I have criticized at some length here).
3. (qualified immunity) Even though Ashcroft is entitled to qualified immunity as a representative to the United States government, al-Kidd may bring an action against him because at the time Ashcroft allegedly decided to use the material witness statute to detain al-Kidd, it was legally certain that doing so would be unlawful. (more…)
There are a number of people who believe, deeply and honestly, that torture is a necessary tool in the struggle against terrorism. These folks do not value torture as such, a point that many on the far left would do well to keep in full view. Instead, these Americans believe that when high value terrorists are caught, the United States must use every possible avenue to unearth intelligence about future terrorist operations. Now, it is worth pointing out that this view comes in different flavors, so to speak. Some believe that there must be a “ticking time bomb” if torture is to be justified. On this view, there must be some immediate threat to the security of the United States and its citizens that warrants setting aside prohibitions on torture. Some, however, believe that the threat need not be strictly imminent; it need only be serious, that is, it need only involve serious future peril for the U.S.
I do not personally subscribe to this view. But that does not mean I think it can be dismissed out of hand. It sounds in utilitarian moral theory, like much of our social policy and contemporary law: Where the benefits of a practice outweigh (or would under normal conditions) the associated costs, there is a presumption that the practice should be socially acceptable or lawful (or both). There is, of course, one fundamental caveat: Even where the benefits of a practice outweigh its costs, if it runs afoul of some fundamental right or constitutional privilege, that practice is – from a legal perspective – anathema. It cannot be done. And that’s the case because where fundamental rights are in play, there simply is no room for utilitarianism. Or is there?
I raise these heady issues of moral philosophy and legal theory because at this moment our government is determining how to proceed with an investigation of CIA operatives who may have gone beyond what they were officially permitted to do when interrogating suspected terrorists. (more…)
Some time ago I wrote a story about Javaid Iqbal, a cable installer the U.S. government allegedly tortured in detention center in Brooklyn. My argument was simple: Mr. Iqbal should be able to present, in court, his case that John Ashcroft and Robert Mueller played key roles in the decision making processes that led to the violation of his constitutional rights. At that point, it looked very much like Mr. Iqbal would be denied his day in court. My fear was that the Supreme Court would throw out his case because Mr. Iqbal would be unable to submit before his case got under way substantial evidence that Ashcroft and Mueller called the shots from on high, ultimately causing the torture he endured.
Unfortunately, I was right. Not only was Mr. Iqbal denied his right to press his claims against the U.S. government and key government officials, the Supreme Court endorsed a problematic approach to evaluating federal lawsuits. The Court rehearsed the old saw, from a case called Twombly, that a case should be dismissed unless the plaintiff’s complaint includes allegations with “factual content” that allows the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” So far, so good. But then the Court did something truly irritating: it viewed Iqbal’s claims with extreme suspicion, concluding that because the September 11th attacks were perpetrated by Arab Muslims, Iqbal’s claim that his constitutional rights had been violated based on discriminatory factors was not articulated with sufficient specificity.
Just a short post from me to note this recent poll from Gallup. I did think the title of their release was a little odd – I would have gone with something like “Two Thirds of Americans want Bush Torture Policy Investigated or Prosecuted.” More analysis from me on this later.
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On 22 January 2009, President Obama released a series of Executive Orders that signaled a wholesale review of the entire legal architecture underpinning the Government’s detention of terrorist suspects. The orders indicate the new administration’s fundamentally different approach to the treatment of so-called “enemy combatants”, including a willingness to abide by standards of international law. However, last week, conflicting views between military judges regarding the suspension of the case of a Guantanamo detainee demonstrated that the transition to a new, legally sanctioned system may be hindered by officials held over from the Bush administration.
The three orders issued by President Obama address different aspects of the procedures put in place by the Bush administration to detain and elicit information from suspected terrorists. The first order establishes an immediate review of all individuals detained at Guantanamo Bay and, in the meantime, imposes a halt on all military commission proceedings. The order also crystallises President Obama’s promise to close the Guantanamo Bay facility within a year and requires the current detention of individuals at Guantanamo to be in conformity with the Geneva Conventions. In contrast to the first order, which focuses specifically on the Guantanamo Bay facility, the second order examines detention of terrorist suspects at a macro level, establishing a Special Task Force to identify lawful policy options “for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations”. Finally, the third order addresses concerns about torture by the US Government, stating that all detainees must be treated humanely in accordance with Common Article III of the Geneva Conventions. This follows an admission last month by judge Susan Crawford, who presides over the military commissions, that certain interrogation techniques used by the US military amounted to torture. (more…)
All blog posts are independently produced by their authors and do not necessarily reflect the policies or positions of PSA. Across the Aisle serves as a bipartisan forum for productive discussion of national security and foreign affairs topics.