Untwisting Tortured Justice

"Unfortunately, it may have been legal..." President Obama's excuse for why intelligence officials may be immune from criminal prosecution despite engaging in torture.

Twice in U.S. history has a sitting president defied the courts and ignored the Constitution. Both Abraham Lincoln and George W. Bush suspended the writ of habeas corpus. Only Lincoln however did so without the imprimatur of Congress. So while it is distasteful in the extreme that Obama appears unwilling to prosecute Cheney and his henchmen for the disgraceful actions their "redefinitions" of torture inspired it is far from clear that such prosecutions would lead to a desirable outcome.

For that to occur Congress would first have to be pressed to undo their egregious role in this sordid chapter. But seeing the reason Bush was provided his legal fig-leaf was due to Congress' cowardice I would not hold out much hopes for seeing justice done if it depends on the same invertebrate lot that signed on to the abomination known as the Military Commissions Act of 2006 .

Here is its outline as described by the NYTimes:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

Joanne Mariner explains why the Bush Administration was so eager to pass the Act before the 2006 midterm elections:

"The MCA was passed in the wake of the Supreme Court's landmark decision in Hamdan v. Rumsfeld, a ruling that called into question the legality of the Administration's secret CIA detention program. Hamdan made it clear that abusive interrogation techniques used by the CIA violated international law, and that CIA operatives could be held criminally liable for such abuses.

Reacting to Hamdan, the Bush Administration first pushed to redefine the scope of U.S. obligations under the Geneva Conventions, in particular Common Article 3, the provision at issue in Hamdan. After opposition from within the Republican Party to such an overt repudiation of universally-accepted international norms, the Administration took a different approach. While the MCA does not explicitly rewrite the Common Article 3, it opens the door to the provision's effective redefinition. It does so by specifying that the War Crimes Act, as amended, satisfies the U.S. obligation to criminalize grave breaches of Common Article 3, and that the president may issue authoritative interpretations of the remainder of the provision.

The law also nullifies the legal impact of the Conventions in domestic courts. Section 5 of the law provides that the Geneva Conventions and related treaties are unenforceable in court in civil cases involving the U.S. government or its agents. It states, specifically, that they may not be invoked "in any habeas corpus or any other civil action or proceeding . . . as a source of rights in any [U.S. or state] court." And another provision of the law bars persons deemed unlawful enemy combatants from invoking these treaties as a source of rights.

Notably, the legislation narrows the scope of the War Crimes Act, decriminalizing certain past acts. Previously, the War Crimes Act criminalized all violations of Common Article 3 of the Geneva Conventions, as well as grave breaches of the Geneva Conventions. Anyone responsible for any Common Article 3 violation, including the cruel, humiliating or degrading treatment of detainees, could be prosecuted under the law.

The MCA revises this portion of the War Crimes Act, replacing the blanket criminalization of Common Article 3 violations with a list of "grave breaches" of Common Article 3, which are specified and defined in the legislation."

That cover makes bringing the actors to the bar of justice extremely complicated. As Daniel Richman, a professor at Columbia University law school. explains, "If we’re talking about holding a particular individual liable, we’re talking about drawing a straight line between opinions given and acts done-- people who really were hurt by the government in ways that are legally offensive ought to have some sort of forum to get compensation or vindication-- but to go from there to say that part of that process should involve singling out one or two subpresidential actors in an area where the president really does dominate policymaking is a stretch for me.”

With a Democratic POTUS hopes were high that the lawbooks would be purged of this monstrosity, but seeing that our craven leaders (over 50 Democrats voted for that horrendous legislation) are no less culpable the chances of Justice winning the day may require a radically different Congress, not to mention a far more confident White House.