Thursday, August 9, 2007

Why US Torturers Get Away With It

"Enhanced interrogation"--or as Bush's legal beagle John Yoo puts it, questioning that falls short of maiming or murdering (Yoo is also the guy who opines that, if it came to it, the President has legal authority to torture a child)--is a euphemism for torture. Torture violates both constitutional and criminal law. Thus "enhanced interrogation" violates both constitutional and criminal law.
The syllogism is simple. But US torturers are getting away with torture. Nobody but a handful of underlings have been prosecuted for the Abu Ghraib debacle. Guantanamo excesses continue. The CIA continues interrogating at black sites, outsourcing its interrogations to regimes known for having their "ways of making people talk," and blithely ignoring standards of decency. All of this is done with the President's knowledge and approval--and, you can bet, with the knowledge and approval of a lot of his lieutenants in the White House, State Department, and Justice Department, as well as the intelligence and military establishments.
So why aren't Bush & Co. in jail? Can you say "legal loopholes"?

1. Military Commissions Act (2006). Since early 2002, Bush administration officials have feared that they could face legal prosecution for their approval of torture. So President Bush included a provision in the Military Commissions Act, the infamous law rushed through Congress to circumvent the US Supreme Court's decision that struck down Bush's flaunting of the Geneva Conventions, that retroactively decriminalized any act of torture committed before the end of 2005. Critics have referred to this as a "stealth pardon" granted by the legislation to both President Bush and all his associates (a unique instance of a sitting President issuing a presidential pardon for himself). Along the way, of course, it also nullified habeas corpus, granted the President the omniscience-assuming right to jail anyone he designates an enemy combatant, and continued to defend enhanced interrogation--thereby, according to Senator Arlen Specter (R-PA) "setting the [human rights] clock back 800 years." As Press Secretary Tony Snow let slip in mid-October 2006, the Military Commissions Act makes Bush the "final arbiter on torture."

2. US v Verdugo-Urquidez (1990). So the Military Commissions Act decriminalizes torture committed up to the end of 2005, and President George "Final Arbiter of Torture" Bush has basically guaranteed that any subsequent torture will be decriminalized as well by not being officially recognized as torture. But can torture victims sue him and his pals for civil damages?

Under normal circumstances, individuals are unable to bring civil suits against the US government or any of its federal officials or agencies. This is the "doctrine of sovereign immunity." But one of the exceptions to immunity is constitutional violations. If the constitutional rights of an individual have been violated, they may still, despite the doctrine of sovereign immunity, file civil suit against the offending federal employee. If the employee is found guilty, damages are out of his or her pocket.

This possibility of personal liability was intended to deter federal employees from abusing their power, and it's pretty much worked with the FBI, whose legal domain is limited to domestic investigations. But the CIA (for example) legally operates outside the US. Are its employees similarly liable?

Apparently not. In US v Verdugo-Urguidez, which focused on a Drug Enforcement Agency's warrantless seizure of a Mexican drug lord's papers, the Court ruled that the Fourth Amendment doesn't apply to the search and seizure by US agents of property owned by non-resident aliens and located in foreign countries. So long as CIA agents or contractees use "enhanced interrogation" on aliens in foreign countries, they work with civil impunity. While it's true that in another decision, Rasul v Bush (2004), the Supreme Court ruled that some Guantanamo detainees had habeas corpus rights, Rasul v Bush doesn't overrule US v Verdugo-Urguidez, because the 2004 ruling was made in part on the understanding that Guantanamo, leased as it is from Cuba, is de facto US, not foreign, territory. The Court found for Rasul only because the second necessary condition of US v Verdugo-Urguidez was violated.

3. Sosa v Alvarez-Machain (2003). But wait a minute. There's always the Federal Tort Claims Act (FACTA) to fall back on, isn't there? Enacted in 1946, FACTA permits private individuals actually to sue the US itself because of actions committed by individuals working on behalf of the US. So if a US-employed CIA agent tortures you, or if the US-employed CIA agent outsources the torture to a third party, you can sue the US. FACTA allows for a waiver of sovereign immunity. Now we're getting somewhere, right?
Wrong. In Sosa v. Alvarez-Machain, the Supreme Court ruled that actions carried out on foreign soil by US agents on behalf of the US government aren't subject to the FACTA waiver of immunity. Once again, CIA agents or their contractees are exempt from civil liability.
And that's how they get away with it. Despite Supreme Court rulings that torture is criminal, legal loopholes--the Military Commission Act's blanket pardon, the denial of constitutional rights to aliens on foreign soil, and the protection of US agents from civil prosecution--allow torture to continue. When you factor in the national paranoia about terrorist enemies within and without and the American public's apparent willingness to swallow the Bush Administration's disingenuous claim that enhanced interrogation isn't really torture, the outlook is bleak.
Two very good resources for exploring the legal discussions of US torture are Karen Greenberg's The Torture Debate in America and chapter 4 of Jennifer Harbury's Truth, Torture, and the American Way. Both were published prior to the Military Commissions Act. Michael Otterman's more recent American Torture discusses the latter.