Restoring the Rule of Law

Christopher H. Pyle teaches constitutional law and civil liberties at Mount Holyoke College, South Hadley, Massachusetts. His most recent book is Getting Away with Torture: Secret Government, War Crimes, and the Rule of Law (Potomac, 2009).

For more than a year now, President Barack Obama’s most enthusiastic supporters have given him the benefit of their doubts. They know that the many challenges he faces are enormously difficult, but they still hope that he might, in the fullness of time, get around to restoring the rule of law and the promise that is America. Unfortunately, that hope is misplaced.

 

The founders’ America, which was hijacked by cowboy America during the years of President George W. Bush, continues to be held hostage by the same, lawless forces. President Obama is not standing up to the advocates of a war without end, or of the criminal interrogations that have gone with it. On the contrary, he has capitulated, as certainly as President Lyndon Johnson did when he escalated a war he knew could not win in Vietnam rather than suffer Republican charges that he and his party were “soft on communism”.

 

This is the tragedy of modern America, a frightened nation dominated, even from exile from office, by conservative thugs who imagine each encounter in their global war on terrorism as just another episode of cowboys and Indians. They do not want equal justice under the law for all suspects, as our Constitution promises. They seek vigilante justice, enforced by torturers and administered by military commissions, while denouncing independent courts and traditional rules of evidence as outmoded impediments to public safety. Driven by a bloated sense of manifest destiny, these lawless gunmen are as indifferent as Osama bin Laden to the inevitable reprisals that revenge-driven policies typically provoke. They live in the moment, trashing constitutional government at home and endangering United States troops abroad.

Upholding Bush’s Legacy

During his first year in office, President Obama has urged our economically distressed nation to forget the Bush administration’s crimes. Indeed, he has urged us to forget that President Bush did not just violate the law; he attacked the very rule of law itself. His cowboys did not just break a few laws; they insisted that the US military and the Central Intelligence Agency (CIA) were above all law, and could kidnap, detain, torture, and even murder “them savages” with impunity. As a result, thousands of helpless, and often innocent, prisoners were subjected to unspeakable cruelties, including sexual and religious humiliation.

 

Some prisoners died. Others went mad; still others committed suicide. The United States was disgraced and its soldiers were endangered as thousands of enraged Muslims, bent on revenge, joined al-Qaeda and the Iraqi resistance.

 

Of course, President Obama was elected in no small part because he promised to end this national shame. He was awarded the Nobel Peace Prize less for anything he did during his first months in office than for his promise to close the infamous prison at Guantanamo Bay, Cuba, and to stop torturing prisoners. In accepting the prize, Obama affirmed those promises, and then acknowledged, perhaps more candidly than he realised, that “even those of us with the best intentions fail to right the wrongs before us”.

 

His failure to right those wrongs has not been inadvertent. From the moment he took office, Obama has refused to hold his predecessors accountable for their crimes. Prosecuting President Bush and his aides would only inflame Republicans, he has argued, leading them to accuse Democrats of being “soft on terrorists” and of undermining the fight against al-Qaeda. Those accusations would distract his administration from its efforts to reclaim the economy, extend health care, end two wars, and address global warming. In this imperfect world, with his limited political resources, Obama has said that he must be “realistic”, which means not only refusing to prosecute those who designed the torture policy, but accepting their contrived claim—secretly imposed on dissenting experts in the military, the State Department, and the CIA—that the law against torture was somehow unclear.

 

But the Obama administration has not just refused to prosecute the torturers; it has actively continued their cover-up. Attorney-General Eric Holder has not only failed to investigate low‑level agents in an effort to gather evidence against their former superiors; he has suppressed Bush-era reports by Justice Department and CIA officials that found clear evidence of wrongdoing. Nor has he, or CIA Director Leon Panetta, bothered to track down those prisoners who disappeared into the CIA’s secret prisons, never to be seen again.

 

During the past year, President Obama’s lawyers have worked furiously to keep photographic and documentary evidence of torture out of the public eye. They have fought innocent victims of torture in federal court to prevent them from suing their torturers, and will not allow most of them to enter the United States to tell their stories, even to committees of Congress.

 

The president has continued to denounce torture, but, like former attorney-general Michael Mukasey, won’t characterise those who did it as criminals. He won’t even say that those who waterboarded Khalid Sheikh Mohammed 183 times committed a crime, excusing them because they supposedly relied on bogus legal memoranda prepared by political appointees in the Justice Department. Obama has been praised for not torturing anyone on his watch, even as he does nothing to deny that option to his successors. Indeed, he has exempted from prosecution anyone who relied “in good faith” on secret Justice Department torture memos, which not only tried to define torture out of existence, but coached torturers on how to escape prosecution if the established law were invoked against them. In so doing, our new president has in effect claimed for himself and his successors the power to disregard the criminal law, as if they were Stuart kings endowed with a royal prerogative to exempt their secret agents from any duty to obey the law. Under Obama, as under Bush, ours is no longer a government under law. It is a government of options.

 

Meanwhile, the US military has joined the CIA in kidnapping alleged terrorists from other countries, especially in the Horn of Africa, for delivery to the interrogators of yet other countries. While the president is attempting to close the prison at Guantanamo Bay and hopes to move at least some of its prisoners to Illinois, the Justice Department is trying to persuade American courts that foreign nationals who have been seized outside Afghanistan, only to be delivered to the US prison there at Bagram airbase, have no legal right to challenge their imprisonment because Bagram, unlike Guantanamo, is arguably in a war zone or not as clearly under US control. In other words, the US government can take prisoners from the United States or Guantanamo, move them closer to a combat zone, or put them in a prison not exclusively under US control, and in the process strip them of their constitutional right to challenge the legality of their detention.

Torture’s Enablers

Of course, neither the Obama nor Bush administrations have acted alone in shielding torturers from prosecution. Both have enjoyed considerable support from Republicans, and conservative Democrats, in Congress. When the Supreme Court ruled in June 2006 that President Bush had no authority to suspend the Geneva Conventions in Afghanistan, he and his torture team, along with their interrogators, became legally vulnerable to prosecution. To avoid this risk, Bush personally went to Capitol Hill in September 2006 and persuaded a Republican Congress to grant them all amnesty from prosecution. The Bush administration also ended waterboarding, so that the statute of limitations on that indisputably heinous crime might run out before the Democrats could initiate prosecutions. Unless repealed, the relevant statutes of limitation will run out before the end of Obama’s first term.

 

The amnesty law and the statutes of limitation are formidable obstacles to restoring the rule of law. But they are not the only ones. Federal judges, especially those appointed by Republican presidents at the urging of the Federalist Society, a conservative campaigning organisation, have shielded administration officials from civil suits by their victims. Some judges have ruled that civil complaints must be dismissed because trials could result in the disclosure of state secrets, as if there is nothing wrong with granting criminals the power to hide evidence of their crimes.

 

While President Obama has promised “transparency”, his administration has continued to advocate secrecy. His lawyers have striven to derail legal challenges to the CIA’s destruction of torture tapes and to the National Security Agency’s illegal wiretapping. White House aides have persuaded Congress not to hold conspicuous investigations into the Bush administration’s crimes, or to support legislation that would curb invocation of the state secrets privilege to prevent legislative or judicial scrutiny of those crimes.

 

Of course, attributing all these decisions to the president would be a mistake. As Harry Truman once observed, the first thing General Eisenhower would discover upon taking office is how difficult it is to alter the government’s course merely by issuing orders. Like the Nobel Prize committee, Obama’s supporters have invested so much hope in his promises that they forget that the president’s staff is tiny while the ship of state is immense, with a permanent crew that has already negotiated many of its standard practices, including secrecy, with congressional committees. Moreover, senators of the opposing party are usually determined to delay the confirmation of the president’s key appointees, such as the attorney in charge of the Justice Department’s Office of Legal Counsel, so that reformers will not often have the president’s ear. Among other things, this means that former CIA directors such as Defence Secretary Robert Gates, and former CIA executives involved in the torture policy such as counter-terrorism adviser John Brennan, will have more opportunity than torture opponents to make their case. Indeed, such holdovers from the Bush administration have been so powerful that two prominent torture critics, White House counsel Greg Craig and the Pentagon’s chief of detainee affairs Phil Carter, have abruptly left the administration.

 

It is also important to remember that presidents cannot, even in the best of circumstances, devote much time to any particular issue. They are, as Richard Rose once observed, more tasters-in-chief than commanders-in-chief. They govern mainly by speeches, tilting this way or that. They are crisis managers, not policy planners, and often find it necessary to devote more time to petty urgencies than to important matters, such as restoring the rule of law. As crisis managers, presidents have little choice but to entrust enormous powers to people they hardly know, who will, in time, find it expedient to accept most of their agency’s goals, confining reformist urges to a few select issues.

 

Leon Panetta, Obama’s CIA director, is a good example. During the presidential campaign, he expressed righteous indignation at the CIA’s use of torture. As soon as he was appointed director, however, he reappointed many of the officials directly responsible for the torture, and defended them from prosecution.

 

During the first weeks of the administration, it looked as if Attorney-General Holder, supported by White House counsel Greg Craig, would restore some measure of accountability. Over Panetta’s objections, they forced the disclosure of secret memoranda revealing how closely the CIA’s torturers had been supervised from headquarters. However, Pentagon officials, backed by Republicans in Congress, succeeded in persuading the president not to disclose more photographs of torture in response to litigation. About the same time, Panetta persuaded the president to assure CIA torturers and their supervisors personally that the Justice Department would not prosecute them for following bad legal advice from Bush’s political lawyers. As Panetta explained at the time, these agents should not be prosecuted because they “answered the call of their country”. Of course, their country did not call upon them to torture prisoners, as the CIA’s inspector-general concluded in 2005 when he referred some agents to the Justice Department for prosecution. As an old hand at Washington politics, however, Panetta knew that to lead his employees he would first have to defend them from prosecution.

 

At the White House, Obama’s political managers also understood that prosecuting Bush’s torture team would trigger a firestorm of Republican protests while winning few votes from independents. Indeed, many votes could be lost—enough to cost Obama re-election—were a terrorist attack to occur on the Democrats’ watch, and especially during a prosecution. Democrats in Congress and the White House know, only too painfully, how Republicans have captured the votes of independents and conservative Democrats for more than half a century by stoking their fears of communists, socialists, blacks, criminals, liberals, baby-killers, homosexuals, immigrants, terrorists, and even of government itself. So, within both the White House and Congress, Democrats have opposed bringing the torturers to justice or allowing their victims judicial relief.

The Duty to Uphold the Law

Prosecuting the torture team would make long-term sense to any president seeking to bring secret government under the rule of law. But elected officials are short-term thinkers. Their need to get re-elected almost always trumps long-term thinking. It has not been difficult for them to pretend that torture did not happen or, in any case, will not happen again.

 

The problem, of course, is that torture is a crime—one of the most heinous crimes anyone can authorise, commit, or cover up. If officials can get away with torture, there is no limit to the crimes they may commit. And if American officials can get away with torture, what hope is there for holding foreign dictatorships accountable, as the United States and its allies did at Nuremberg?

 

Nor does one have to be a law professor to know that the president’s duty is not to exempt government officials from prosecution; it is to ensure that the law be faithfully executed. Obama has no authority to suspend the operation of some laws, or to exempt his secret agents from their application.

 

Unlike his predecessor, President Obama has not authorised his lawyers to claim unlimited and illimitable powers for him. Even so, by exempting from prosecution any CIA agent who relied in “good faith” on secret legal memos authorising torture, Obama has, in effect, claimed such powers for himself and his successors.

 

His lawyers might say that his exemption of those agents from prosecution is nothing more than an exercise of prosecutorial discretion. But, prosecutorial discretion is not granted to the president. It is a power that individual prosecutors may exercise in individual cases, in light of the relevant law and facts. Prosecutorial discretion is not the equivalent of mass amnesties, and does not give presidents the authority to excuse government torturers from prosecution for the crimes they are plotting or the crimes they have committed.

 

Nor may presidents properly pardon their subordinates or predecessors for any crimes they may have committed. Despite Gerald Ford’s “pardon” of Richard Nixon, pardons before conviction are not pardons at all, but exercises of prosecutorial discretion. As such, they are not binding on future administrations.

 

The power to grant mass amnesties properly belongs to Congress, not the executive, and that, too, is a major obstacle to bringing the torturers to justice. A Republican Congress granted them amnesty from prosecution when it passed the Military Commissions Act in 2006. That law needs to be repealed, but doing so would take a level of political courage for which congressional Democrats are not noted.

 

Some day it might be possible; Argentina and Chile took nearly thirty years to repeal the amnesty laws that shielded their torturers, and are only now prosecuting some of them. But the victims of their “dirty wars” were mainly citizens, while the victims of our dirty war were mainly foreigners. That should not make any difference, morally or legally, but politically it will. Support for torture is widespread among US voters. According to a poll released at the end of 2009, 58 per cent of Americans supported waterboarding the “underpants bomber” who attempted to destroy an aeroplane on Christmas Day.¹

 

That is a great tragedy, for so long as the voters support torture, even in moments of great passion, politicians are not likely to prosecute American torturers, and the United States will be in no position to denounce the torture of Americans by foreign adversaries. President Obama admitted as much in his Nobel acceptance speech in Oslo when he declared, “America cannot insist that others follow the rules of the road if we refuse to follow them ourselves.”

Necessary Steps

Until that day of reckoning comes, the Obama administration, Congress, and the federal judiciary could each foster some measure of accountability by cutting back on the state secrets privilege and allowing civil suits by the victims of torture to proceed. It is disgraceful that the current administration is demanding that such suits be dismissed because they might reveal the crimes of its predecessors. Everyone knows our government tortured prisoners. Affirming how it was done will not help al-Qaeda to train its operatives to resist future cruelties. Nor is there any reason not to reveal what “enhanced interrogation techniques” meant in practice, so long as our government promises not to use them again. When our so-called Department of Justice insists that these methods are legitimate state secrets it is saying, in effect, that it wants to preserve torture as an option. Imagine what it would be saying if a foreign government were to offer the same argument in American courts in order to protect its torturers from civil suits by their American victims.

 

For example, the Obama administration continues to argue that the rendition and torture of Binyam Mohamed—a joint US, British, and Moroccan crime—cannot be revealed in an American court, because that might cause British intelligence to cease sharing information with the United States. And it strenuously objected to its revelation in a British court, warning that the United States might be forced, according to Secretary of State Hillary Clinton, not to share secrets with British intelligence. Obama’s lawyers have even argued that American courts should not hear a civil suit by Maher Arar, an innocent Canadian whom the CIA kidnapped out of the United States for torture in Syria, because revealing that crime in open court might “embarrass” the Canadian government, which has already atoned for its complicity by apologising to Arar and paying him more than $10 million for his pain and suffering.

 

Of course, our government needs the help of British and Canadian intelligence as much as they need ours. Telling the truth about discontinued practices might affect co-operation with the Moroccan and Syrian intelligence agencies that tortured those men on behalf of the United States and Great Britain, but it is difficult to see how those governments would be further embarrassed, given what has already been published about their interrogation methods.

 

The Obama administration is not really seeking to promote international co-operation when it invokes the state secrets privilege; it is trying to conceal evidence of criminality and keep the torture option open. But why should any court that values justice want to shield American kidnappers and their friendly foreign torturers from accountability, especially when the chief effect of their crimes is to provoke more Muslims to attack Americans?

 

When the president was roundly criticised for exempting from prosecution any CIA agents who relied upon the secret torture memos issued by the Office of Legal Counsel, Attorney-General Holder appointed a special prosecutor to investigate CIA interrogators who exceeded those guidelines, or tortured prisoners before permission was granted. The prosecutor’s assignment was not to prepare prosecutions; it was simply to see if there was enough evidence to warrant beginning an investigation.

 

The person Holder chose for this job is John Dunham, a former US attorney who had been previously appointed by the Bush administration to investigate the CIA’s destruction of ninety-two videotapes of its agents and contractors torturing prisoners. Dunham was not known for moving swiftly; he had already spent two years on his first investigation without producing a report. His appointment may have been intended to keep the hope (or the threat) of accountability alive, but more likely it was to run out the clock, legally or politically.

 

What most observers have failed to notice is that Obama’s decision to investigate only those agents who may have acted without the Justice Department’s legal blessing would, in effect, give the Office of Legal Counsel the power secretly to bless more lawbreaking within the executive branch. Where did the Office of Legal Counsel’s politically appointed lawyers get the authority to suspend the criminal law? And what public purpose is served by arguing, as the Obama administration has in court, that the lawyers who wrote the torture memos should be shielded from civil suits by their victims?

 

Following the Second World War, enemy torturers were not allowed to raise the defence of following orders. But our government’s torturers can now escape prosecution by persuading prosecutors that “a government lawyer said I could do it”. Reversing this policy, which has now been endorsed by two administrations, is crucial to persuading interrogators to reveal which officials approved their work, which demanded that waterboarding continue after interrogators decided that it wasn’t producing useful intelligence, and which authorised destruction of their videotapes of the torture in apparent violation of standing court orders.

 

Obama’s cover-up has gone even further than Bush’s. For example, during the summer of 2009, the White House allowed the CIA massively to redact a 2005 inspector-general’s finding of criminal activity by agency interrogators. During the autumn of 2009, the Justice Department helped persuade the Supreme Court not to reverse a lower court decision holding that government torturers are immune from civil suits by their victims, because Attorney-General Alberto Gonzales had certified that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants”. And it still has not released a long-completed report by the Office of Professional Responsibility finding professional misconduct by Office of Legal Counsel lawyers in the preparation of the torture memos, despite numerous promises to do so.

 

The Obama administration also seems determined to perpetuate the injustice of Bush’s military commissions. To his credit, the president has braved considerable “nimbyism” in Congress to bring some civilian suspects to the United States for trial in civilian courts. He hopes to purchase a prison in Thompson, Illinois, to house others, so that Guantanamo may be closed by summer 2010. This is all to the good, as federal courts can be trusted not to rely on evidence obtained by torture. However, the attorney-general’s explanation for trying some prisoners in federal courts, because they have juries, while taking others before military commissions, which don’t, makes no sense. If Khalid Sheikh Mohammed, the self-described mastermind of 9/11, is entitled to a fully fledged trial by jury in New York, under the traditional rules of evidence, the same right should be accorded to other defendants currently scheduled to be tried by military commissions at Guantanamo.

 

Holder tried to justify this double standard in testimony before the Senate Judiciary Committee on 18 November 2009: “As a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law.” But the inscription outside his office does not say, “Justice is done whenever the government wins.” It says, “The United States wins ... whenever justice is done.” The justice to which that quotation refers is “equal justice under law”. It does not mean picking real courts of justice when the Justice Department wishes to showcase the mountain of evidence the FBI gathered from Mohammed before the CIA waterboarded him 183 times, and then selecting kangaroo courts, hidden away on a military base in Cuba, when the evidence against other suspects appears thin.

 

But this is not the only double standard that Obama’s attorney-general has endorsed. Like his predecessors, Holder has chosen to deny some prisoners any trials at all, either because the government lacks sufficient evidence to guarantee their convictions, or because what “evidence” it does have is fatally tainted by torture which would embarrass the United States if revealed in open court. Again, most Americans do not realise it, but the prison in Thompson, Illinois, is part of Obama’s plan to detain some prisoners indefinitely in a “war” without end. At first he considered asking Congress to pass a preventive detention law. Then he decided to institute the policy himself, thereby defying the courts to overrule him and assume primary blame for any crimes against the United States committed by prisoners following their release.

 

According to Holder, courts and commissions are “essential tools in our fight against terrorism”. If they won’t serve that end, the administration will disregard them. The attorney-general also assured senators that if any of the defendants are acquitted, he will still keep them behind bars. It is difficult to imagine a greater contempt for the rule of law than this refusal, by the government’s top lawyer, to abide by the judgment of a court. Indeed, it is grounds for disbarment.

Presidential and Judicial Failings

In short, Obama’s “accomplishments” in the administration of justice “are slight”, as the president admitted in Oslo, and not deserving of a Nobel prize. What little he has done has more to do with appearances than substance. Torture was an embarrassment, so he ordered it stopped, at least for the moment. Guantanamo remains an embarrassment, so he ordered it closed, while a prison very much like it at Bagram airbase in Afghanistan is being expanded. The president decided that the kidnapping can continue, if not in Europe, then in Ethiopia, Somalia, and Kenya, where it is less visible, and therefore less embarrassing. Meanwhile, his lawyers have laboured mightily to shield kidnappers and torturers from civil suits and exhaust the statute of limitations on criminal prosecutions. Most importantly, torture remains an option, should al-Qaeda strike again. By talking out of both sides of his mouth simultaneously, Obama keeps hope alive for liberals and libertarians who believe in equal justice under law, while reassuring neo-conservatives that America’s justice will continue to be laced with revenge.

 

It is probably naive to expect much more of an elected official. Few presidents willingly give up power, or seek to leave their office “weaker” than they found it. Few now have what it takes to stand up to the national-security state, or to those in Congress and the corporations that profit from it. Moreover, were the president to revive the torture policy, there would be insufficient opposition in Congress to stop him. The Democrats are too busy stimulating their district economies and too timid to defend the rule of law. The Republicans are similarly preoccupied with pork for their donors and constituents. However, they also like torture, especially if it can be camouflaged with euphemisms.

 

All this suggests that restoring the rule of law is going to require some time, and the active assistance of federal judges. Unfortunately, the federal judiciary has been slow to recognise that most Guantanamo detainees were not captured on any battlefield, but were purchased with bounties on the basis of dubious allegations that would never hold up in court. Federal courts have also been deaf and blind to the government misuse of the state secrets privilege, and have bent over backwards to give the executive years in which to interrogate prisoners both abusively and incompetently for what has long been stale information.

 

The Supreme Court has, after much delay, held that the “Great Writ” of habeas corpus is not just transient legislation, but a constitutional right that cannot be suspended by Congress, except in times of invasion or rebellion, and even then only for so long as the public safety requires it. After much dithering, district court judges have begun to order the release of obviously innocent prisoners for lack of evidence, but right-wing judges on the Court of Appeals for the District of Columbia Circuit have impeded that effort. Indeed, judges on that court have gone so far as to declare that where there is a legal right to liberty there need not be a legal remedy to enforce it. If that travesty persists, then we can all kiss our rights good-bye.

 

To reverse such pronouncements will require more than better arguments in court. It will require the appointment of better judges—not lawyers chosen by the Federalist Society for their hostility to human rights, but lawyers committed to limited government, guaranteed liberties, equal justice, and the rule of law. But even this will be difficult, so long as the filibuster rule gives Republicans, and possibly a few “blue dog” (conservative) Democrats, a veto power on Democratic nominees.

A Long and Difficult Road

In short, restoring the rule of law is going to take many years—as long, perhaps, as it has taken Argentina and Chile to recover some semblance of justice for their “disappeared”. Reversing our nation’s drift towards a national-security state, in which the president and his secret agents can commit crimes with impunity, will require persistent efforts across a wide front, including replacement of the Republican Party as it is currently constituted. Surprisingly few Americans appreciate the depth of the constitutional crisis currently embroiling their nation, or how swiftly another al-Qaeda attack on American soil could drive panicked politicians to surrender what remains of our liberties and Congress’s authority to an ever more secretive executive that promises, but cannot deliver, full protection from all furtive foes. If for no other reason than that the right-wing remnants of the Republican Party will assume power by default whenever the Democrats fail, the United States is not far from that Orwellian moment when perpetual wars, and the crimes that go with them, become widely accepted as necessary to the achievement of illusory victories in conflicts that ultimately cannot be won by violence.

Endnotes

1. “58% Favor Waterboarding of Plane Terrorist to Get Information”, Rasmussen Reports, 31 December 2009.