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Experts Predict Slew of Torture Suits

Daphne Eviatar — Wed, 20 Aug 2008 19:42:28 GMT

Last week, the Second Circuit Court of Appeals announced that its full court would reconsider the disturbing case of Maher Arar, a Syrian-born Canadian citizen arrested by U.S. authorities at JFK airport in 2002 and forcibly extradited to Syria for interrogation. As U.S. officials surely expected, Arar was questioned under torture for the next year in a Syrian prison. He was eventually released without charge.

One of the first known victims of the Bush administration's secret "extraordinary rendition" policy, Arar sued U.S. authorities in 2004 for conspiring in his torture. A three-judge panel dismissed the case in January, saying that as an alien deported by immigration authorities, he had no right to bring a claim. But as more such cases are being filed, it appears the courts are beginning to reconsider. The entire Second Circuit court -- all 22 judges -- last week announced sua sponte that it would take a second look at Arar's case. Meanwhile, similar cases filed by former detainees apparently tortured under the direction of U.S. officials could be headed to the Supreme Court.

Illustration by: Matt Mahurin

Legal experts predict that many more such cases could be filed -- as the hundreds of prisoners abused and then released from U.S. detention centers around the world begin seeking redress from Washington. The Detainee Abuse and Accountability Project, an independent non-governmental organization, has already documented more than 330 cases in which “U.S. military and civilian personnel are credibly alleged to have abused or killed detainees” in detention centers at Guantanamo Bay, Iraq and Afghanistan.

Among those were three British citizens -- Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed -- who traveled to Afghanistan in October 2001 to offer humanitarian relief to civilians displaced by the war. In late November, they were kidnapped by Rashid Dostum, an Uzbeki warlord and leader of the U.S.-supported Northern Alliance. He turned them over to U.S. custody – apparently for bounty money that American officials were paying for suspected terrorists. In December, without any independent evidence that the men had engaged in hostilities against the United States, U.S. officials sent them to Guantanamo Bay. Over the next two years, they claim, they were imprisoned in cages, tortured and humiliated, until they were returned to Britain in 2004. None was ever charged with a crime.

Seven months later, the three men, as well as another British citizen picked up in Afghanistan and imprisoned at Guantanamo Bay, sued former Defense Sec. Donald Rumsfeld and a host of other military commanders for directing and authorizing their torture, as well as violating their religious rights. (They were forced to shave their beards and watch as their Korans were flushed down the toilet.)

In January, a federal appeals court decided that even if all their claims are true, Rumsfeld and his fellow military commanders are immune from suit.

Though torture, physical abuse and humiliation of prisoners violate domestic and international law -- as well as the U.S. Constitution -- the court had found that the officials were acting “within the scope of their employment” and cannot be held personally responsible. What’s more, the court reasoned, they’re immune from liability because it wasn’t clear when they authorized the torture that detainees at Guantanamo Bay had any enforceable rights. As for the men’s religious rights, the court decided that none were “persons” entitled to the protection of the law they sued under. Case dismissed.

It’s become a common refrain that even if government officials broke the law, there’s no one willing to enforce it. Several other cases brought by prisoners who say they were tortured in U.S. custody have been dismissed on similar grounds, before ever reaching the merits. Atty. Gen. Michael Mukasey has repeatedly said he won’t even investigate whether government officials committed crimes by authorizing the torture of prisoners, despite the growing volume of evidence supporting that charge.

Still, it’s not clear that those who authorized the brutal interrogations at Abu Ghraib, Guantanamo and elsewhere will all get off scot-free. Lawyers representing the former British detainees say they plan to seek review in the Supreme Court.

Many international law experts believe that it’s imperative to compensate victims of state-sponsored torture. “Torture is a crime under international law,” said Christian Tomuschat, emeritus professor of public international law at Humboldt University in Berlin and a former member of the U.N.’s International Law Commission. “In every state governed by rule of law, a victim of governmental abuse should have a remedy to bring a claim of reparation against the government. That’s a basic requirement of the rule of law.”

U.S.-based lawyers say it’s particularly important in this situation -- where government prosecutors refused even to investigate the allegations. “The Rasul case was brought to establish a principle of accountability,” said Sidney Rosdeitcher, an international lawyer at the corporate law firm of Paul, Weiss, Rifkind, Wharton & Garrison. “We know that there’s been an enormous amount of abuse. It’s systemic -- not just a few rotten applies at Abu Ghraib. But no one of any importance has ever been held accountable.”

In the Rasul case, international-law professors, human-rights groups, military historians and former military officers were so outraged that the district court had ruled that government officials were immune from suit that they filed friend-of-the-court briefs with the court of appeals, arguing that torture is universally forbidden and couldn’t possibly be considered part of any government officials’ job; nor could policy-makers not have known it was illegal.

“These legal doctrines [of immunity] have no place where there’s a clear military prohibition on this kind of conduct,” said Rosdeitcher, who wrote the brief on behalf of the former military officers. “Mistreatment of prisoners is forbidden by the Uniform Code of Military Justice. And it’s been outlawed going all the way back to George Washington, after the battle of Trenton -- when he forbid the mistreatment of Prussian mercenaries.”

In fact, as detailed in the brief, it was President Abraham Lincoln who first codified the requirement that prisoners of war be treated humanely. The Lieber Code, which applied equally to non-traditional enemies, forbade the “intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death or any other barbarity.” It also prohibited using violence to extract information.

The rules of war were updated after World War II, in the 1949 Geneva Conventions. Common Article 3 – common to all four conventions – prohibits “violence to life and person…mutilation, cruel treatment and torture; …[and] outrages upon personal dignity, in particular, humiliating and degrading treatment…” The article applies to all prisoners -- not just traditional prisoners of war.

But just because something is unlawful doesn’t mean victims will get a remedy. Part of the problem, legal experts explain, is that even though the Supreme Court has lately proved willing to defy the Bush administration and rule that detainees at Guantanamo Bay have rights under the U.S. Constitution, that doesn’t mean it’s ready to give the detainees denied them the right to sue. It’s the difference between using the law as a sword or as a shield.

“A court may be more comfortable protecting someone’s interests to be free from unlawful imprisonment, yet more reluctant to hold government officials liable,” said William Aceves, a professor of international law at California Western School of Law, who drafted the amicus brief on behalf of international law professors and human-rights organizations.

But if there’s no way of enforcing the laws designed to rein in overly aggressive government tactics, what good are they?

“The most frustrating situation is where victims don’t even get their day in court,” said Aceves.

That's what happened to Khaled al-Masri, a German citizen of Lebanese descent kidnapped by the CIA in Macedonia in 2003 and sent to Afghanistan. There, he claims, he was brutally interrogated, tortured and sodomized. CIA officials eventually realized they’d captured the wrong man. They released him in May 2004.

When he sued, the court dismissed his case based on the government’s argument that it would reveal state secrets and endanger national security.“That’s really troubling,”said Aceves.

It’s particularly troubling because the state-secrets doctrine requires the court to trust the executive branch to decide what constitutes a legitimate state secret. Yet, as Barry Siegel points out in his new book, "Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case and the Rise of State Secrets," even in the original case that established state secrets as a defense – involving the crash of a B-29 bomber that killed nine men in 1948 -- the government wasn’t hiding state secrets. It was merely covering up its own negligence.

Lawyers for the former detainees aren’t giving up just yet. But even if the courts remain reluctant to let the cases proceed, there may be other ways of compensating victims. The New York City Bar Assn.’s task force on national security and rule of law, for example, recently recommended that the federal government at least provide an administrative procedure to compensate victims of torture, or cruel, inhuman and degrading treatment. “Victims of violations of Common Article 3 must have some remedy that compensates them and deters future violations,” the group said in its July report.

Not everyone agrees. Legal commentator Stuart Taylor Jr., in a Newsweek column in July, called on President George W. Bush to pardon all officials involved. He wrote it would be more effective to convene a Truth Commission. Georgetown Law professor Rosa Brooks has also called for a Truth Commission.

That might at least provide a forum for the victims to be heard. But it wouldn’t compensate them for their suffering, which usually continues well after the physical abuse ends. “These people are having trouble moving ahead with their lives,” said Eric Lewis, a partner in the firm Baach Robinson & Lewis, which, with the Center for Constitutional Rights, represents the British plaintiffs in the Rasul case.

Some lawyers predict that U.S. officials are more likely to be held accountable outside the United States. “I would be very surprised," said Aceves, "if the government officials that were involved in drafting the torture memos, that played a role in the policies in Abu Ghraib and elsewhere, were not very cautious about their foreign travel.”

After all, Gen. Augusto Pinochet of Chile was arrested while traveling in Britain in 1998 on a warrant issued by a Spanish judge under the theory of universal jurisdiction. That set a precedent that may now be causing some U.S. officials to watch their step. “I can’t imagine that John Yoo, for example, would not be thinking about that and consulting with his own counsel before he travels anywhere," said Aceves, referring to the attorney who wrote one of the administration's torture memos.

Pinochet must be on Donald Rumsfeld's mind, too, given that lawyers have already tried to prosecute the former defense secretary in Germany, France, Argentina and Sweden.

Mukasey Won't Enforce the Law -- Again

Daphne Eviatar — Wed, 13 Aug 2008 17:15:00 GMT

Once again, Atty. Gen. Michael Mukasey has announced that he will not be enforcing the law. Taking another “let-bygones-be-bygones” approach, he told the American Bar Assn. yesterday that he's not going to bother prosecuting anyone in the Justice Dept. for illegally hiring career government lawyers based on political considerations rather than merit.

That’s the second time in recent weeks that Mukasey has insisted that the law need not be enforced. In June, he confirmed in writing that he has no plans to investigate whether senior Bush administration officials broke the law in authorizing the torture and inhumane treatment of terror suspects.

Despite his protests that “not every wrong, or even every violation of the law, is a crime,” as he told the ABA yesterday, it’s an odd position for the nation’s leading law enforcement officer to be taking. After all, whether senior government officials authorized and directed others to break the law -- either in the treatment of prisoners or the hiring of government officials -- goes to the very heart of the integrity of the federal government. Can the chief prosecutor really claim that others ought to abide by the law when he gives a pass to his own colleagues?

When he was nominated, Mukasey was considered a strong bipartisan candidate, someone who commanded respect for his 18 years as a federal judge. But supporters neglected to mention that he had left that esteemed $165,000-a-year position to return to private practice defending white-collar criminals -- so that he could earn more than a million dollars a year at the New York law firm Patterson Belknap, where he represented clients like Goldman Sachs and former Enron chief Kenneth Lay.

In his official role as attorney general, Mukasey is the chief legal officer of the United States and also a legal adviser of the executive branch. His primary responsibility is supposed to be to represent the nation. Yet, once again in his career, Mukasey appears to prefer the position of defender of a powerful client rather than enforcer of the law. That may work out well for his return to a corporate legal job in the long run -- but it creates a serious problem for the rest of the country today.

Apparently, U.S. Contractors in Iraq Are No Longer Above the Law

Matthew Blake — Mon, 11 Aug 2008 16:35:00 GMT

Daphne Eviatar wrote an excellent piece last week pointing out that private contractors in Iraq are not currently subject to any U.S., Iraqi or international law. More than five years after the U.S. invasion of Iraq that finally may be about to change.

This via Think Progress: The Washington Post reported yesterday that the United States and Iraq have agreed private security contractors are now subject to Iraqi law. This concession to the Iraqis is part of the broader negotiation over the U.S. presence in the country beyond December, when America's U.N. mandate expires.

From KBR's faulty electric wiring to Blackwater guards firing at a public square, U.S. contractors have been implicated in the deaths of both U.S. and Iraqi civilians. Whether this means the law will be the same for war contractors as it is for Iraqi citizens is unclear. But maybe the mere threat of accountability will deter contractors' most egregious abuses.

This Week In John Conyers' Pursuit of Karl Rove

Matthew Blake — Thu, 07 Aug 2008 21:25:31 GMT

Congress may be in recess, but House Judiciary Committee Chairman John Conyers (D-Mich.) isn't taking a vacation from his enduring probe of Karl Rove's role in the prosecution of former Alabama Gov. Don Siegelman. Today Conyers wrote a letter (pdf) requesting that the Republican National Committee hand over all documents related to Siegelman, including emails sent between the RNC and the White House. He also requested documents and emails subpoenaed by the RNC in their investigation of the politicization of the Justice Department.

Conyers' letter follows last week's ruling, which limited the right of White House officials to invoke claims of executive privilege. District Judge John Bates ruled that White House officials are not "totally immune from ever having to respond to congressional testimony" when subpoenaed. Even when the president has asserted executive privilege, officials must appear before Congress and, when appropriate, invoke executive privilege. Bates also ruled that officials must give a specific description of subpoenaed documents they're withholding based on executive privilege.

Jill Simpson, an Alabama attorney active in the state Republican Party, told the Judiciary Committee last year that Karl Rove ordered the Justice Department to re-open a bribery probe into Siegelman, which ultimately resulted in a dubious conviction. After nearly a year of evasions based on a claim to executive privilege, Rove denied involvement in Siegelman's prosecution in a written statement two weeks ago, but he has not done the same in sworn, public testimony. His statement did not prevent the committee from holding him in criminal contempt.

Conyers argues that if President Bush is allowing Rove to answer written questions about the Siegelman prosecution, then what's wrong with producing a few emails?

Conyers is giving the RNC a week to respond. Rove, meanwhile, has a month to decide if he will appear before the judiciary committee, which will almost certainly subpoena the "boy genius" when it reconvenes.

Ends & Means in War Crimes Trials

Aziz Huq, Garth Schofield — Wed, 06 Aug 2008 16:58:38 GMT

In the hazy early hours of July 30, a special U.N. flight touched down at Rotterdam airport, bringing the former leader of Bosnia’s wartime Serb government, Radovan Karadžić, to stand trial before the International Criminal Tribunal for the Former Yugoslavia, or ICTY, in The Hague. At the same time, proceedings in the trial of Osama bin Laden’s alleged driver, Salim Hamdan, which concluded today in a conviction on five of 10 charges, were reaching a crucial stage.

International reactions to the two war crimes trials, however, and their likely effects on future events, could not be further apart. The Karadžić trial signals the start of closure for the quasi-genocidal Balkans conflicts, which ended with the Dayton Accords in 1995; by contrast, the Hamdan trial offers no sense of closure and little succor to U.S. counterterrorism efforts. To the contrary, it will provide more grist to international claims about American hypocrisy and lack of moral authority. His conviction will do nothing to stem those criticisms, or the debate about the commissions' ethics and legality.

Illustration by: Matt Mahurin

Karadžić’s recent arrest in Belgrade and his trial are the result of subtle European use of soft power: the European Union’s clever use of sanctions and incentives tied to EU membership to support Boris Tadic’s pro-European party and marginalize extreme nationalists led by Vojislav Kostunica.Without this careful diplomacy, the conditions for Karadžić’s arrest would never have arisen.

Certainly, Karadžić’s trial before the ICTY presents many challenges. Serbs have accused the ICTY of bias in its prosecutions, and that country's ultra-nationalists have scored points by casting scorn on the court.

More seriously, Karadžić has signaled that he may represent himself -- as Slobodan Milošević did. Milošević filibustered and grandstandedthroughout the proceedings, drawing them out until his sudden death. As a result, the ICTY’s reputation suffered, and the trial never successfully addressed the gravity of Milošević’s alleged crimes.

It is to be hoped the ICTY prosecutors learned their lesson, and now focus the Karadžić trial in ways that prevent a repeat of Milošević’s performance. One way of doing this would be to concentrate on the most serious crimes -- for example, the massacre of up to 8,000 unarmed civilians, mostly Muslims, at Srebrenica. To provide justice for the dead of Srebrenic -- a list of whose names provides sobering reading -- and to ensure that the proponents of violence in the Balkans are discredited, nothing else will do.

Proceedings against Hamdan, however, are unlikely to have the same salutary effect in the conflict with Al Qaeda. The proceedings can largely be viewed as grist for the propaganda mills of America's opponents. Commonly identified as bin Laden’s driver, Hamdan was captured during fighting in Afghanistan while transporting two surface-to-air missiles. He was charged with conspiracy to commit attacks against the United States and providing material support to a terrorist organization; he was convicted only on the material support charges. He has been held since 2002 at Guantanamo. After his lawyers successfully challenged President George W. Bush’s military commissions, established unilaterally by executive order on Nov. 13, 2001, he was one of the first to be indicted under the new statutory commissions scheme created by the 2006 Military Commissions Act.

Hamdan’s trial and conviction by a second-tier military justice system will probably never be regarded as fair or legitimate. The commission enables the military trial of offenses -- including conspiracy and material support -- that have never before been recognized as war crimes amenable to military jurisdiction. Hamdan is likely the first person ever to be convicted of material support as a war crime -- which did not even exist as an idea at the time of his capture.

Worse, the commission's rules allowed the introduction of evidence gained by coercion, as long as the judge decides it has “sufficient” probative value. (In Hamdan's case, evidence from his interrogations at Guantanamo was permitted; evidence from his interrogation in Afghanistan was kept out). The commissions, in other words, allow the administration to rid itself of the problem of tortured Guantanamo detainees by using the latter’s confessions to convict them.
Indeed, the very day that Karadžić was being flown to the Hague, Hamdan introduced evidence that he had been subjected to illegally coercive tactics at Guantanamo.

It is the height of ironies that the trial of an Al Qaeda suspect should furnish the terrorist group with evidence of arguments it uses to gain support for its violent activities -- that the United States tortures in violation of its own laws and its own ideals.

“The eyes of the world are on Guantanamo Bay,” wrote Judge James Robertson of the D.C. district court in June, as he allowed the Hamdan commission to move forward. What the world sees is American “hard power” -- military force in naked form -- being exercised. Advocates of the military commissions are already pointing to the split verdict for Hamdan as evidence of the system's intrinsic fairness. But no inference can be drawn from the partial acquittal since none of the charges are properly war crimes, and since Hamdan was certainly convicted on the basis of evidence gained by illegal coercion.

In the Hague, by contrast, an equally attentive world sees a threshold victory for European soft power that ensures an end to violence, not its encouragement. Despite the Bush administration’s contempt for “Old Europe,” it seems that the continent has some lessons for the New World after all.

It is not too late for a new administration to do better. To do so, it could go back to the wisdom of Justice Robert Jackson, the Supreme Court justice who was the chief U.S. prosecutor at the Nuremberg trials of Nazi war criminals. “Any result that the calm and critical judgment of posterity would pronounce unjust,” observed Jackson, “would not be a victory for any of the countries associated in this prosecution.”

The same remains sadly true today.

Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of "Unchecked and Unbalanced: Presidential Power in a Time of Terror." Garth Schofield is a Yale Law School student working this summer at the Brennan Center for Justice.

Hamdan the Guinea Pig

Daphne Eviatar — Tue, 05 Aug 2008 17:58:50 GMT

If the first war crimes trial coming out of the Bush administration’s “war on terror” was supposed to showcase the horrors of the enemy and our government’s successful pursuit of justice, it appears instead to be highlighting the absurdities of the administration’s prosecution of its ill-defined war.

Yesterday’s closing statements at the trial of Salim Hamdan, Osama bin Laden’s driver, revealed more about the government’s failures in targeting the mastermind of the terror attacks than about the guilt of the accused. There has been no real evidence that Hamdan was any more than a lowly assistant to bin Laden, at least not presented publicly. But as his military lawyer, Lt. Cmdr. Brian Mizer, suggested yesterday in his closing statement, the secrecy of parts of this trial may be aimed more at hiding the government’s incompetence than protecting any privileged intelligence. “You know what Mr. Hamdan agreed to do,” Mizer told the military panel acting as a jury, according to today’s New York Times. “You know what happened, how we squandered that opportunity.”

Indeed, testimony during the trial made clear that Hamdan tried to help the U.S. military find his former boss, taking interrogators to Afghan homes and training camps to track down bin Laden. Now it seems that the U.S. military failed to follow up on some of those leads.

Meanwhile, despite two weeks of testimony, there’s been no publicly presented evidence showing that Hamdan himself attacked or plotted to kill anyone. Though the judge allowed an inflammatory 45-minute film about the horrors of Al Qaeda, made by a self-proclaimed 28-year-old terrorism expert with no post-graduate qualifications in the subject, the film provided no evidence linking Hamdan to the organization's deadly activities. And while prosecutors revealed that weapons were found in the car Hamdan was driving, he was, after all, bin Laden’s driver. Yet that, in itself, doesn’t make him a war criminal. Even Hitler’s driver, Erich Kempka, was not prosecuted as a war criminal -- a point that another of Hamdan’s defense lawyers, Joseph McMillan, noted in his closing statement.

The first war crimes trial to come out of the attacks of Sept. 11, 2001 should have been a publicly presented open-and-shut case of a hardened terrorist being brought to justice. It’s been nothing of the kind. That may matter little to Hamdan, however, the guinea pig for the new military commissions system. In perhaps the most Kafkaesque aspect of his case, even if he is acquitted of these charges, the U.S. government can still hold him in prison indefinitely -- until it declares its “war on terror” over. Unfortunately, that day may never come, and perhaps won’t as long as bin Laden remains at large -- at least in part because, as we’ve now learned, the government “squandered” one opportunity to capture him.

Are Contractors Above the Law?

Daphne Eviatar — Mon, 04 Aug 2008 04:26:00 GMT

In January of 2008, Staff Sgt. Ryan Maseth, 24, was electrocuted while showering in his Baghdad barracks. His death prompted last week’s congressional report concluding that defense contractor KBR, (until a year ago a subsidiary of the oil services giant Halliburton) was well aware that the electrical system in Maseth's complex was faulty. An accident like this, the report found, was bound to happen. But this report also now raises a larger and thornier question about military defense contractors: can they be held legally liable for their actions – or inactions? Will anyone be held responsible for Maseth's death?

This is an increasingly important question as the U.S. government hires ever more military contractors to do work that used to be done by U.S. soldiers. The war in Iraq has already involved more outsourcing of military functions than any previous war in American history.

An estimated 180,000 civilian contractors now work in Iraq and Afghanistan to support the U.S. government there. They do everything from guard U.S. officials and dignitaries to truck fuel, food and other supplies to military bases — all jobs that used to be done by soldiers.

Illustration by: Matt Mahurin

Private contractors operating in Iraq are not subject to U.S. military authority, or to U.S. or Iraqi law. Their employees are not subject to the rigors of Army basic training; and their superiors are not held to the strict rules and ethics that apply to the U.S. military. As a result, notes Peter W. Singer, a senior fellow at the Brookings Institution, in his book, "Corporate Warriors: The Rise of the Privatized Military Industry," "When the means of security are privatized, certain mechanisms of moral hazard and adverse selection might lead firms astray. Just as in the rest of commerce, war is business where nice firms do not always finish first."

Indeed, whistle-blowers at these companies run the risk of being fired. In 2007, shortly after one KBR electrician reported to a defense contracting agency official that logs were being created to make it appear that nonexistent electrical safety systems at the base were working properly, he lost his job, according to The New York Times. Another employee “said his KBR bosses mocked him for raising safety issues.”

Yet, the Pentagon inspector general’s interim report provided to the House Oversight Committee on July 28 said it “has not found any credible evidence that representatives from KBR were aware of imminent, life-threatening hazards” in Maseth’s complex prior to his death. This is despite that fact that the Army itself had issued an urgent bulletin (pdf) in 2004 warning soldiers of the threat.

Of course, the Pentagon may have an interest in protecting its contractors. The Defense Dept. indicated, in a 2006 review, that it intends to increase its reliance on private military companies and other outsourced support services. Its handling of the death of Maseth certainly suggests that the Pentagon is defensive on the subject: the soldier's mother, Cheryl Maseth, was originally told that her son had carried an electrical appliance into the shower.

As of January, more than 1,000 private civilian contractors -- including 110 KBR employees -- had been killed in Iraq, and another 13,000 wounded. Deaths of American soldiers in battle, meanwhile, have climbed to more than 4,100.

So what happens when the military contracting companies themselves are to blame for the deaths?

For years now, KBR and other military contractors have argued that as a matter of law, regardless of the circumstances, they are not responsible. As government contractors, they say, just like the military, they’re immune from legal suits. That’s been KBR’s defense in a series of cases over the past few years when the company has been accused of knowingly sending unarmed civilian employees into active combat zones – sometimes to their deaths.

In a case I wrote about in January for The American Lawyer, KBR denied responsibility for sending an unarmed convoy of trucks down a dangerous road under active insurgent attack. In what’s come to be known as the Good Friday Massacre, in April 2004, six KBR drivers were killed and 14 were wounded. One driver is still officially missing, and presumed dead.

Now KBR could be facing many such claims. According to the Defense Dept.’s own inspector general, as of July 10, there have been 16 deaths due to faulty electrical wiring on U.S. military bases that KBR was supposed to be maintaining.

Companies like KBR rely on a range of legal defenses when accused of wrongdoing, but the gist is always the same: working for the U.S. military means they’re beyond the authority of the U.S. courts -- therefore immune from U.S. law.

That’s exactly the tack KBR appears to be taking in the case of Maseth, whose mother has sued KBR, claiming that the company knew of the danger and was responsible for fixing it, but didn’t. In other words, KBR, she asserts, could have prevented her son’s death.

KBR, which has received $20 billion in Iraq war contracts since 2003, vehemently denies this. KBR's actions "were not the cause of any of these terrible accidents," company executive Thomas Bruni told the House Oversight and Government Reform Committee on Wednesday. An interim DOD inspector general report, obtained by The Associated Press last Tuesday, reached the same conclusion.

But at least some evidence suggests otherwise. Under KBR’s multi-billion-dollar contract with the Army, the company was responsible for maintaining U.S. military bases and facilities in Iraq. According to documents produced to the Oversight Committee, KBR had inspected and found problems with the building's electrical infrastructure at least four times in the months prior to Maseth's death.

Documents show, for example, that another soldier in the complex had experienced electrical shocks while showering and submitted a work order (pdf) to KBR on July 8, 2007, stating: "Pipes have voltage, get shocked in the shower." A KBR electrician that day found a faulty pressure switch and noted: "Plumber needs to repair." On July 9, 2007, after KBR workers replaced the pressure switch and the water pump, the work order was stamped "finished".

Still, on Jan, 2, 2008, when Maseth turned on the shower, an ungrounded water pump short-circuited and electrified the water pipes. The current traveled through the pipes, the shower head and the water itself, electrocuting Maseth. He was dead within seconds. The congressional report concludes, based on the evidence, that KBR had installed the water pump that malfunctioned and caused the death.

Whether a court will hold the company liable, however, may depend less on the facts than whether a judge accepts KBR's claim of immunity. According to KBR’s legal papers, even if the company knew of the problem and failed to fix it, KBR will claim that it’s not legally liable because it was working for the U.S. government.

In its motion to remove the case from state to federal court, KBR’s lawyers wrote that they plan to invoke the “government contractor defense” – meaning the government approved the work so it is not responsible; the “official immunity doctrine” – that, as a government contractor, it’s entitled to the same immunity as the U.S. military itself, and the “political question” doctrine -- a KBR favorite on which it’s won several cases before. Under this, KBR argues that the court should dismiss the case because it would require the court to judge the actions of the U.S. military -- province of the president and Congress, not the federal courts.

KBR has relied on this same “political question” defense to win at least two previous cases involving the death of U.S. soldiers or of its own employees. But the courts are now starting to question the legitimacy of those defenses.

In the case of the Good Friday Massacre, the traditionally conservative Fifth Circuit Court of Appeals last May reversed a Texas district court’s order that had dismissed the case under the political question doctrine. The three-judge panel noted that, contrary to KBR’s argument, it may well be possible to resolve the cases without engaging in a "constitutionally impermissible review of wartime decision-making." Though the court cannot judge the military decisions of the Defense Dept., the court acknowledged, that doesn’t shield every action taken by a military contractor. Judge Leslie Southwick wrote, "these tort-based claims of civilian employees against their civilian employers can be separated from the political questions that loom so large in the background."

The same reasoning likely applies to the electrocutions. Whether the political question doctrine applies “is partly determined by how closely intertwined the contractor is with the government officials,” said Laura Dickinson, an expert on military contractor law at the University of Connecticut Law School. “One of the interesting things that I think we’re seeing is that courts are not willing to throw these cases out when the contractor has a fair degree of discretion.”

In this case, either KBR was responsible for repairing the electrical problems at the military base, or it wasn’t. That is a factual dispute that would emerge as the lawyers gather evidence. It is not a legal matter that warrants dismissal of the case.

Unless carefully applied, contractor immunity defenses preclude a real investigation into what happened and who is responsible. If, as has happened over and over in this war, nobody is held responsible for the failures of military contractors, then there can be no incentive to do better next time.

The result is that, as long as something is done in a war zone, even the shoddiest work gets a pass -- regardless of the consequences.

Judicial Partisanship Awards

Cass R. Sunstein — Thu, 31 Jul 2008 13:14:31 GMT

Who are the real activists on the U.S. Supreme Court? Do Republican appointees differ from Democratic appointees? How much? Are federal judges political?

I have been studying these issues with several colleagues, including Thomas Miles, an economist and lawyer at the University of Chicago Law School, for a number of years now. One big question: Do judges show a political bias? We also wanted to see what any bias might tell us about how judges might rule in the future – under, for example, an Obama or McCain administration.

Illustration by: Matt Mahurin

We catalogued thousands of judicial decisions -- well over 20,000-- to analyze this. We looked for partisan bias by studying whether and when judges vote to uphold decisions of federal agencies, in areas including environmental protection, labor, telecommunications, discrimination and occupational safety.

We investigated which members of the Supreme Court are the most partisan -- in that they are more likely to vote in favor of conservative agency decisions than liberal ones. (Because Chief Justice John Roberts and Justice Samuel Alito have been on the court only a short time, we did not include them because we had too little data.) We wanted to see if some justices are more political in their voting patterns than others – and also learn something about how future administrations are likely to fare in the Supreme Court.

We used a simple test to decide whether an agency’s decision should be counted as liberal or conservative. If a decision was challenged by a public-interest group, like the Sierra Club or Environmental Defense, we counted it as conservative. If it was challenged by a corporation, like Exxon or General Motors, we counted it as liberal.

We used this method because the relevant question is not whether an agency’s decision is liberal or conservative in the abstract -- it is how and why that decision is challenged in its context. In addition, though we had many students working on this, we read every decision ourselves, making adjustments when our method led to errors.

We wanted to know: Is it true that liberal justices are more partisan than conservatives? Who is the most partisan member of the Supreme Court? Who the most neutral?

Our answers: Justice Clarence Thomas wins the Partisanship Award. Justice Anthony M. Kennedy wins the Neutrality Award.

Here are the results:

Table 1: Partisan Voting on the Supreme Court

Justice	Gap between liberal and conservative agency decisions ( in percentage points)	Type of Agency Decision Favored
Clarence Thomas	46	Conservative
John Paul Stevens	40	Liberal
Antonin Scalia	27	Conservative
Stephen Breyer	26	Liberal
Ruth Bader Ginsburg	23	Liberal
William Rehnquist	21	Conservative
Sandra Day O'Connor	14	Conservative
David Souter	14	Liberal
Anthony Kennedy	1	--

This information does not tell us everything we need to know. Thomas shows the strongest partisan bias, but is he also an activist? Does he vote to strike down agency decisions at a high rate? To test for judicial activism and judicial restraint, we examined all the data to find which justices are most likely to strike down agency decisions.

It turns out that Breyer wins the award for Judicial Restraint. Surprisingly, the award for Judicial Activism goes to . . . Justice Scalia. Here are the results:

Table 2: Activism and on the Supreme Court

Justice	Rate of upholding agency decisions (percentage points)
Breyer	82
Souter	77
Ginsburg	74
Stevens	71
O'Connor	68
Kennedy	67
Rehnquist	64
Thomas	54
Scalia	52

While the Supreme Court gets the most attention, the lower courts are also important in determining the meaning of national law and shaping national policy. To analyze their behavior, we decided to focus on how Republican and Democratic appointees approach the decisions of the Environmental Protection Agency and the National Labor Relations Board.

We asked whether Republican appointees are less likely to vote to uphold liberal decisions from those agencies, than conservative ones; and whether Democratic appointees show the opposite pattern. Here, too, we defined agency decisions as liberal or conservative depending on who challenged them. If a labor union or an environmental group made the challenge, for example, the decision was labeled conservative. If a company challenged a labor ruling or an environmental regulation, the decision was characterized as liberal. We again read all the decisions here to test our characterizations.

The answer: Partisan voting is pervasive on the lower federal courts.

When the agency’s decision is conservative, Republican appointees are far more likely to vote to uphold it than are Democratic appointees. Democratic appointees show the same bias: When the agency’s decision is liberal, Democratic appointees are much more likely to vote to uphold it than are Republican appointees.

Republican appointees vote to uphold liberal agency decisions at a significantly lower rate than conservative agency decisions. Democratic appointees vote to uphold liberal agency decisions at a significantly higher rate than conservative agency decisions.

This evidence offers three important lessons.

First, widespread conservative complaints about “liberal judicial activism” should be taken with many grains of salt. If we ask how often the justices vote to strike down agency decisions, Scalia and Thomas, the most conservative members of the Supreme Court, show the most activist voting patterns. By contrast, the justices commonly described as “liberal” are the least activist.

Of course, there are other measures of what makes a judge “activist,” and I do not claim that our method cannot be challenged, but it is useful to offer some statistical tests, which can ensure that critics are not building their conclusions into their definitions.

Second, partisan voting is a serious problem in the federal judiciary. If the EPA issues a regulation that is aggressive in cleaning the air, or if the National Labor Relations Board resolves a dispute in favor of a union, a panel that consists solely of Republican appointees is unusually inclined to strike it down. That’s indefensible. No one should approve of a situation in which the fate of an environmental regulation depends on whether a lower court panel consists of one, two or three Republican appointees.

Third and perhaps most important, federal agencies in an Obama or McCain administration are likely to make a number of decisions that are more liberal than those of the Bush administration. Many decisions will ultimately be challenged in federal court -- and the Republican-appointed judges who dominate the federal bench could well prove to be a big obstacle. On the Supreme Court, for example, Scalia and Thomas might be joined, much of the time, by Roberts and Alito. On key occasions, Kennedy might probably join them as well.

The lower federal courts could prove an even more serious barrier. Those courts have been stocked with appointees of Presidents Ronald Reagan, George H.W. Bush and George W. Bush. The voting behavior of appointees has been clear: They show a distinctive tendency to strike down agency decisions that do not follow a conservative line.

Here, then, is a major warning for the next administration – and a potential problem for democracy itself.

Cass R. Sunstein is Felix Frankfurter Professor of Law at Harvard Law School, as of Aug. 1. He will be the Harry Kalven Visiting Professor at University of Chicago Law School in January 2009. His most recent book, which he co-wrote with Richard Thaler, is "Nudge: Improving Decisions about Health, Wealth, and Happiness." His books include "Are Judges Political? An Empirical Analysis of the Federal Judiciary" and "The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever."

Playing Politics With Immigration Law

Matthew Blake — Tue, 29 Jul 2008 21:47:18 GMT

The politicization of Justice Dept. hiring is not just an embarrassing Bush administration scandal-- it's affected asylum seekers and immigrants. So says a new report by Syracuse University's Transactional Records Access Clearinghouse or TRAC. Using Justice Dept. hiring data, TRAC found that the number of immigration judges have slightly decreased while immigration cases have exponentially increased. This is despite Alberto Gonzales vowing in 2006 to hire 40 new immigration judges.

There are eight fewer national immigration review judges-- 202 instead of 210-- than there were in 2006. Consequently, one judge has to handle 1,520 immigration-related matters a year, many of which determine whether refugees and immigrants can stay in the country. Judges have complained that they lack time to give detailed opinions and review all the relevant documents.

TRAC says the lack of new hires is "certainly due in large part to political hiring." By looking for GOP loyalists, Justice's Executive Office of Immigration Review left judge positions unfilled for long periods of time. There was also a freeze in the hiring process last year as Justice attorneys internally investigated political bias in selecting judges.

Meanwhile, the number of border agents has almost doubled in the past 5 years. Strictly based on personnel numbers, the Bush administration has gotten tough on immigrants without doing more to ensure they're getting justice.

Torture and the Presidential race

Daphne Eviatar — Tue, 29 Jul 2008 12:30:00 GMT

While more and more evidence comes out that Bush administration officials illegally authorized torture of suspected terrorists, in violation not only of international law but of established U.S. law as well, both leading presidential candidates have, for the most part, remained silent on whether they support further investigation and prosecution, if the evidence warrants it.

Still, the statements they’ve made so far about torture, justice and accountability give us a strong idea of where they stand on the question.

At his recent speech in Berlin, Sen. Barack Obama, the presumed Democratic nominee, made a point of asking: “Will we reject torture and stand for the rule of law?” Though he didn’t lay out what exactly he would do to enforce the law, his comments elsewhere indicate he’s open to investigating and even prosecuting policy-makers for war crimes if the evidence turns out to support the charges. As he told a Philadelphia Inquirer reporter in April:

What I would want to do is to have my Justice Department and my attorney general immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that . . . if crimes have been committed, they should be investigated. . . .

So this is an area where I would want to exercise judgment -- I would want to find out directly from my attorney general -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

Sen. John McCain, on the other hand, has not made any such statements. His staff did not return repeated calls for comment on the issue, or even to say whether he’s ever taken a stand on it. That evasion stands in stark contrast to the image he originally projected in his campaign, of a former prisoner of war who would always take a principled stand against torture and prisoner abuse. As commentator Andrew Sullivan has pointed out, that stand is what attracted many of his early admirers, and is alienating them now.

Two of McCain’s positions on recent bills suggest that as president, he’s more likely to sweep official abuses under the rug than to take a principled stand for accountability and law enforcement.

First, in 2006, McCain voted in support of the Military Commissions Act, which amended the War Crimes Act specifically in order to eliminate the risk of prosecution for Bush administration officials, CIA officers and others who had used abusive, humiliating or degrading interrogation techniques on prisoners. (Obama voted against the MCA.) The amendments significantly narrowed the scope of potential criminal prosecutions to 10 categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking. It specifically left out other acts forbidden by the Geneva Conventions, including "outrages upon [the] personal dignity" of a prisoner and intentional humiliation, like the actions taken at Abu Ghraib – including stripping prisoners, dragging them around on a dog leash, forcing them to assume sexually humiliating positions and making them wear women's underwear. None of that, under the 2006 amendment to the War Crimes Act, is illegal anymore.

In February, when McCain had another opportunity to take a stand against torture, he revealed that politics trumps principle again: he voted against a Senate bill that would have prevented the CIA from using torture, violence and humiliation by restricting interrogation techniques to those listed in the Army Field Manual. McCain explained is vote: “What we need is not to tie the CIA to the Army Field Manual, but rather to have a good faith interpretation of the statutes that guide what is permissible in the CIA program.”

In offering his reasoning for voting against the bill, McCain said that he believes that waterboarding is illegal. Still, he has never suggested that the government officials that authorized and directed its use ought to be investigated -- let alone charged with any crime for violating the law.

Not that McCain doesn’t believe in investigation or prosecution of government officials. Indeed, in 1999, he voted to impeach President Bill Clinton, emphasizing the importance of holding the president “accountable to the rule of law“:

“Presidents are not ordinary citizens,” he pronounced. “They are extraordinary, in that they are vested with so much more authority and power than the rest of us. We have a right; indeed, we have an obligation, to hold them strictly accountable to the rule of law.”

Only one of the two leading presidential candidates appears willing to do that now.

Justice Dept. Auditor Gives Long Version Of Why Monica Goodling Broke Law

Matthew Blake — Mon, 28 Jul 2008 17:53:00 GMT

Attention summer beach readers: As JJ mentioned in his "State of Play" post, the Justice Dept. inspector general released an eight-chapter, 146-page report today on how the Attorney General's office of Alberto Gonzales illegally played politics with its hiring. We've known for more than a year that Monica Goodling, the former Justice Dept. White House liaison, and Kyle Sampson, chief of staff for Gonzales and Goodling's immediate supervisor, violated federal govt. policy -- and federal law -- by taking into account the political affiliations of candidates for career Dept. positions. Today's report, though, details Goodling's remarkable lack of subtlety in her zeal for a more Republican Justice Dept.

The report gives eight instances where candidates who qualified for positions like counter-terrorism prosecutor and asst. U.S. attorneys were turned down by Goodling due to questions about their GOP loyalty. Goodling gave each of these employees interview questions like "Aside from the President, give us an example currently or recently of someone in public service that you admire" and "Why are you a Republican?" Several prospective employees told the inspector general that Goodling often steered the conversation to questions about abortion and gay marriage. For instance, one employee might have thought they were displaying their GOP bona fides by naming Condoleezza Rice as their most admired politician. But Goodling "frowned" and replied "but she's pro-choice."

Goodling also performed Lexis Nexis searches on prospective candidates by typing in their names in tandem with words like "abortion," "gay," and "homosexual." She also mined www.opensecrets.org for prospective employee's political contributions.

Goodling and Sampson both left the Justice Dept. in 2007, and Justice has, obviously, vowed that such hiring shenanigans will not happen again. Goodling, who was granted immunity when she testified to Congress in May 2007, did not grant an interview to the Justice IG. It's not yet clear whether the report means criminal charges for her, Sampson, or Gonzales.

Using Law to Justify Torture

Daphne Eviatar — Wed, 23 Jul 2008 18:51:30 GMT

For months now, Atty. Gen. Michael Mukasey has refused to investigate whether Bush administration officials committed war crimes by authorizing the torture of suspected terrorists. His reasoning? Any actions were authorized by the administration’s lawyers, and so cannot constitute a crime. As he wrote to Rep. John Conyers (D-Mich.), one of 56 House Democrats who last month called on Mukasey to appoint a special counsel: “It would be both unwise and unjust to expose to possible criminal penalties those who relied in good faith on ... prior Justice Department opinions.”

But can the alleged use of torture be so easily waived away? Since the so-called “war on terror” began, the Bush administration has, by its own admission, used "enhanced interrogation techniques" like forcing detainees to stand for 40 hours; simulated drowning and dousing detainees' naked bodies with cold water in chilled prison cells. Former Defense Secretary Donald Rumsfeld formally approved the use of "stress positions," attack dogs, sexual humiliation and physical violence. And these are just the officially sanctioned techniques the public knows about.

As the photos and written accounts of torture, sodomy and murder at Abu Ghraib have revealed, the American public may only know a limited amount when it comes to abuse of detainees in U.S. custody. Indeed, Human Rights First in 2006 found that in the previous four years, at least eight U.S. prisoners had been tortured to death.

Illustration by: Matt Mahurin

The Democrats’ call for an independent investigation has received little attention – perhaps because the Justice Dept. has consistently denied that policymakers could be culpable. After all, they were acting on the advice of legal counsel.

Indeed, evidently anticipating the Democrats' charges, in 2002 the White House, Justice and Defense Departments began creating a paper trail of legal memos in the hopes of insulating their actions. Thus the infamous “torture memos,” written by former Justice Dept. lawyers John Yoo and Jay Bybee, were drafted to define torture narrowly – and were careful not to rule it out. Last week, the legal commentator Stuart Taylor Jr. accepted Mukasey’s position without question. Taylor wrote in Newsweek that there was no sense in prosecuting government officials. President George W. Bush, Taylor argued, should pardon everyone; the matter of culpability should be dropped.

But do the administration’s legal memos put the matter to rest? Does soliciting a set of self-serving opinions actually shield senior government officials from prosecution?

Probably not, according to many constitutional scholars and lawyers. Indeed, the Justice Dept. itself would never accept, on face value, any suspected criminal’s defense that he had been relying on advice of counsel. Rather, legal experts say, that advice must have been a reasonable interpretation of the law, based on a thorough knowledge of the facts, and provided before the suspect acted. So when it comes to policymakers authorizing torture, the administration’s defense appears to fail on all grounds.

First, without an investigation establishing who advised whom, of what and when, we don’t even know if Mukasey’s claim is true. Sure, the White House has turned over legal memos written by the Justice Dept.’s Office of Legal Counsel. But at least 17 other memos, including the most recent, have not been released, on the basis of attorney-client privilege.

“We don’t know what these memoranda say,” said Scott Horton, a human-rights lawyer and professor at Hofstra Law School. “The ones operative now have not yet become public. We know that they go to the really rough stuff.” That includes "the harshest interrogation techniques ever used by the Central Intelligence Agency," according to a New York Times report on a 2005 OLC memo.

For the Justice Dept. now to claim that an “advice of counsel” defense eliminates even the need to investigate is disingenuous at best. “Typically, in a white-collar case, DOJ is going to look to challenge your assertion that you have a viable ‘advice of counsel’ defense every way possible,” said a prominent criminal-defense attorney, who doesn’t want to be named because he frequently squares off against the Justice Dept. That means a suspect must reveal what he told his lawyer, and what his lawyer told him. In other words, he waives the attorney-client privilege that the government is now invoking.

Even if it turns out a lawyer did sanction criminal conduct, no one gets a pass by saying they relied blindly on that advice. The reliance has to be reasonable. “They would have to subjectively believe what they were doing was not against the law,” said Michael Ratner, president of the Center for Constitutional Rights.

Could any U.S. official have reasonably believed torture was legal? “Given the history of the U.S. adherence to the U.N. Torture Convention, it’s a well-established fact that torture is unlawful,” stated Amrit Singh, a lawyer for the ACLU, who has sued the Defense Dept. to obtain documents regarding the treatment of prisoners. “To then plead innocence based on legal advice would eviscerate the whole purpose of these laws.”

The United States has even codified the international ban on torture into federal law, providing for the death penalty when the torture turns fatal. Notably, by March 2005 more than 108 prisoners in Iraq and Afghanistan had died in U.S. custody, most of them violently, according to government data provided to the Associated Press.

The United States is also a signatory to the torture prohibitions of the Geneva Conventions. These apply “not only to prisoners of war, but to all prisoners,” said Singh, a position the Supreme Court affirmed in the Hamdan case in 2006. The Geneva Conventions also outlaw “humiliating or degrading treatment.”

Not surprisingly, then, government officials have strongly disagreed about the legality of extreme interrogation techniques, like waterboarding. February 2003 memos from the Judge Advocate General’s Corps to the Pentagon opposed them unequivocally. A report last month by the Justice Dept.’s inspector general described White House meetings where the controversial methods were hotly debated.

“Many people in the government were nervous or upset about implementing the president’s post-9/11 counterterrorism policies,” writes Jack Goldsmith, head of OLC from October 2003 to June 2004, in his book, "The Terror Presidency: Law and Judgment Inside the Bush Administration." That included some in the CIA “who were reportedly anxious about the special interrogation program for high-value detainees.”

John Rizzo, acting general counsel of the CIA in 2002, confirmed this in Congressional testimony last year. "There had been some concerns that were expressed" by CIA interrogators who feared prosecution, he said.

After Goldsmith took over OLC, he rescinded the now-infamous Aug. 1, 2002 “torture memo” that defined torture as inflicting pain as intense as "the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The memo refused to rule out such torture for interrogation purposes.

“The message of the Aug. 1, 2002 opinion was clear,” writes Goldsmith. “Violent acts aren’t necessarily torture; if you do torture, you probably have a legal defense; and even if you don’t have a legal defense, the law doesn’t apply if you act under color of presidential authority.”

The CIA had been through this before. Most notoriously in 1975, when the Senate's Church Committee, headed by Sen. Frank Church, publicly scrutinized and penalized the agency for using illegal methods. So CIA officials desperately wanted what Goldsmith calls the “golden shield” to protect them from future prosecution -- which they hoped the torture memos would provide.

It turns out, with good reason. New Yorker writer Jane Mayer, in her new book, "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals," writes that the International Committee of the Red Cross issued a secret report to the CIA concluding that interrogation techniques it had used on suspected Al Qaeda members, dating back to before August 2002, were “categorically” torture and “constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted."

One such case involves the 2002 interrogation of Qaeda operative Abu Zubaydah, whom the administration has admitted was subjected to waterboarding. Former Atty. Gen. John Ashcroft acknowledged the problematic timing of the Zubaydah interrogation just last week, when he testified to the Judiciary Committee that Zubaydah was likely mistreated months before such actions were legally sanctioned. According to Mayer, Zubaydah told the Red Cross that he was waterboarded "at least 10 times in a single week and as many as three times a day."

“I think the evidence is quite strong that the torture program began almost immediately after 9-11,” said Ratner of the CCR. “So the memos don’t help them there.”

In fact, if lawyers wrote the memos approving torture techniques at the request of officials who had already used them, the lawyers themselves could be guilty of conspiring to commit war crimes. “If the lawyer’s opinion is seriously wrong," said Horton, "then the lawyer risks being tied into the criminal conduct.”

Indeed, after World War II, the U.S. military tribunal at Nuremberg prosecuted a group of German lawyers who had advised the Nazis on its wartime policies -- including the treatment of prisoners. “They were held criminally liable," said Horton, "on account of legal advice they gave.”

Lawyers are still held criminally accountable today. For example, Horton noted, the Justice Dept. is now prosecuting a prominent attorney in Miami, whose clients have included former Vice President Al Gore, for allegedly approving payments of legal fees that derived from illicit drug proceeds.

But legal experts say that authorizing torture rises to a whole other level of criminality. “The prohibition on torture is not just one rule among others, but a legal archetype – a provision which is emblematic of our larger commitment to non-brutality in the legal system,” Jeremy Waldron, professor of law and philosophy at New York University Law School, wrote in the Columbia Law Review.

That’s certainly how it was viewed in the Nuremberg era. As the U.S. Supreme Court wrote in 1944: “There have been, and are now, certain foreign nations with governments ... which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.”

Today, Mukasey would add one caveat: unless the government’s lawyers say otherwise.

Lively Cast of Characters Want Last-Minute Pardons From Bush

Matthew Blake — Mon, 21 Jul 2008 18:13:23 GMT

The New York Times' Charlie Savage reported this weekend that the Justice Dept. has received about 2,300 petitions from felons seeking a pardon in the Bush administration's final months. The petitioners include former California Rep. Randy "Duke" Cunningham who's spending eight years in prison for accepting a combined $2.4 million in bribes. Marion Jones, the gold-medal winning sprinter who admitted she used to steroids to win her gold medals, has petitioned the White House to end her six-month prison sentence. And 80's enthusiasts will appreciate that junk bond financier Michael Milken, who served jail for securities fraud, is also asking for clemency.

Interestingly, the Justice Dept. will reveal the name of anybody who's petitioned for a pardon-- as long as a specific case is inquired about. So Savage asked whether Duke Cunningham requested a pardon and found out that he did. Jailed uber-lobbyist Jack Abramoff, however, has yet to seek a pardon. Nor is Dick Cheney's former chief of staff, Scooter Libby. Bush commuted Libby's sentence last year, but didn't pardon him.

So far Bush has pardoned only about a quarter of the people Ronald Reagan and Bill Clinton pardoned. Besides the above figures, it will also be interesting to see whether Bush uses his pardoning power to issue preemptive pardons to the architects of detainee interrogation laws. The White House has declined to say whether the Bush will preempt any legal action that might be taken against, for example, Dick Cheney or his top lawyer, and current chief of staff, David Addington. Stay tuned.

Correction: Michael Milken is no longer in prison for securities fraud. He's been released. We regret the error.

Spying Law Challenged

Spencer Ackerman — Tue, 15 Jul 2008 12:00:00 GMT

With the Congressional battle over revising the Foreign Intelligence Surveillance Act ending in a victory for President George W. Bush last week, a coalition of civil libertarians and journalists has decided to take the fight to the courts.

Late last week, the American Civil Liberties Union, Human Rights Watch, Amnesty International, the Service Employees International Union and The Nation magazine filed a lawsuit in U.S. District Court for the Southern District of New York challenging the constitutionality of the FISA Amendments Act of 2008, which Bush signed into law on Thursday. In Amnesty v. McConnell, the civil libertarians claim that the new law's allowance of what they call "sweeping and virtually unregulated authority to monitor the international communications" of U.S. citizens and residents is a violation of the 4th Amendment's protections against unreasonable searches and seizures.

Separately, the ACLU requested that the Foreign Intelligence Surveillance Court, known as the FISA Court -- the secret, 30-year old body that adjudicates domestic-surveillance warrants in intelligence cases -- make public how the government decides whom it can target under the new law. The ACLU also wants to know what the government does with surveillance information it collects but deems irrelevant to a specific case.

Technologically, when doing surveillance, the government frequently sweeps up information about individuals unrelated to a particular target, and must establish procedures for getting rid of that information. This process, known as "minimization," is among the most alarming to civil-liberties groups, but the government has not explained what the minimization process involves under the new law.

The civil-liberties coalition is "arguing that U.S. citizens and persons have a reasonable expect of privacy in their communications," said Jameel Jaffer, director of the ACLU's National Security Project and counsel to the plaintiffs in Amnesty v. McConnell. "This law gives the government unfettered to access those communications, which we believe is unconstitutional."

Under the FISA Amendments Act, to conduct surveillance involving a U.S.-based person, the government does not need to specify that it is targeting a specific individual. Nor does it need to specify to the FISA Court that the surveillance target is actually related to terrorism, though the threat of terrorism was the administration's stated reason for amending the 30-year old law -- and also for violating its terms for five years under the so-called "Terrorist Surveillance Program."

Now, the government can receive a generalized, year-long surveillance warrant from the FISA Court if it can show only that its surveillance methods are "reasonably" appropriate for acquiring "foreign intelligence information." Critics say that standard is unconstitutionally broad.

Katrina vanden Heuvel, editor of The Nation, said that the ability of the government to listen in without a specified warrant on communications it deems relevant to cases involving "foreign intelligence information" poses a threat to all journalists. "This law threatens their ability to gather critical information." vanden Heuvel said. "It also undermines the right of all U.S. citizens to engage in private telephone and Internet conversations without fearing that the government is listening."

Some experts believe that the coalition's legal challenge will be undone by the inherent difficulty of proving that they have suffered specific harm as the result of government surveillance activities under the law. The government does not voluntarily disclose who it spies on under the FISA Amendments Act, impairing litigants' ability to show that they have, in fact, been placed under surveillance. Successful legal challenges rarely occur if the challenger cannot prove he or she has been actually harmed by a given law, a legal doctrine known as "standing."

"I think most courts would think this is not ripe yet," said Robert Weisberg, a professor at Stanford Law School."It's a complicated statute, and its legality may turn on the way it's implemented. There's a good chance a court would say, 'Sorry, too soon.'"

Jaffer said he expects precisely that contention from the government. "I'm sure the government will argue, as it has in every one of these [surveillance] cases, that we don't have standing, but think we do," Jaffer said. "Our clients rely on the confidentiality of their communications on a daily basis. Human Rights Watch and Amnesty couldn't do their work unless they [offered their contacts] confidentiality."

Weisberg said he "conceded the circularity" of the government's argument, but added that it might not matter in the case. "It's a Catch-22," he said, "but the government has benefited from Catch-22s in the past."

Whatever the case's fortunes, legal challenges are necessary to determine what the scope of the law actually is in practice, said Martin Lederman, a professor at Georgetown University Law School. "As with other historically important Fourth Amendment cases, the courts will be required to translate traditional norms and expectations of privacy to new forms of communications and new governmental surveillance capabilities," said Lederman, who served in the Justice Dept's Office of Legal Counsel from 1999 to 2002. "How the cases will come out probably depends on how many foreign-to-domestic communications are subject to surveillance, and on just what the [National Security Agency] is allowed to do with information about U.S. persons under this law -- factual questions that are, for now, obscured in secrecy."

The additional challenge filed by the ACLU in the FISA Court may introduce new facts into the public debate.

In its filing to the FISA Court, the ACLU contends that the new law "does not place reasonable limits on the government's retention, analysis and dissemination of U.S. communications and information that relates to U.S. citizens and residents." It asks the court to disclose the government's so-called minimization procedures and to allow the ACLU to attend court hearings when the government requests surveillance under the new law. And it asks the court itself to issue "public versions of its own legal opinions" about the validity of the government's minimization procedures.

Minimization is a key issue of concern for many civil libertarians. Julian Sanchez, a Washington journalist who focuses on the nexis of privacy, security and technology, noted a 2003 case, U.S. v. Sattar, in which tens of thousands of communications said by the government to be minimized ended up appearing in court. "[T]hough these communications were 'minimized,' when faced with the legal duty to cough up what they had, the FBI was still able to pull up the full records," Sanchez blogged today. "Just because a communication has been 'minimized' doesn’t mean it's not being kept."

Jaffer said the filing in the FISA Court represented a strategy to get the court itself to rule on the constitutionality of the new FISA law. "It can't view these [minimization] procedures in a vacuum," he said.

If the coalition loses in court, civil libertarians upset by the FISA Amendments Act of 2008 might not have another chance to reign in blanket government surveillance for at least the remainder of the Congressional session, and possibly longer. Both presidential candidates favored the act, and few presidents voluntarily relinquish new executive powers granted them by Congress.

"Congress can always revisit the legislation" Jaffer said, "but I think a lot of people were hoping that a shift in Congress toward the Democrats would have meant a Congress that was more respective of individual rights and the Constitution. But it turns out this Congress not only essentially endorsed the warrantless wiretapping program, but gave the executive branch additional powers as well. It's depressing to see both the Democrats and the Republicans throw their hands up on this issue and give the executive branch all powers asked for.

"That really does leave the courts" as a remedy, Jaffer continued. "And that is where we are now."

SCOTUS Reins in President

Herman Schwartz — Mon, 23 Jun 2008 23:41:44 GMT

The Supreme Court's Boumediene v. Bush decision earlier this month on the treatment of alleged enemy combatants at the Guantanamo Bay, Cuba, signals the end of the Bush administration's effort to set the presidency above the rule of law. The long-term significance of this defeat, however, now turns on whether Sen. John McCain (R-Ariz.) or Sen. Barack Obama (D-Ill.) takes the Oval Office next January.

Ever since 9/11, the Bush administration has insisted on a free hand on all national-security and related foreign-affairs issues. Its initial demand was breathtaking -- neither the courts nor Congress could impose any on limit on how President George W. Bush exercised his powers as commander-in-chief.

Supreme Court justices don't like to be told they are powerless; and in Hamdi v. Rumsfeld (2004) all but Justice Clarence Thomas rebuffed the executive branch.

Two more cases followed, in which the administration's demands were rejected. In Rasul v. Bush, decided the same day as Hamdi, the first of three bitterly divided decisions, a 5-4 majority refused to let the administration make Guantanamo Bay a legal no-mans land. Two years later, in Hamdan v. Rumsfeld, the same justices blocked an effort to prosecute suspected terrorists without complying with the Uniform Code of Military Justice and the Geneva Conventions.

Both decisions relied largely on the applicable statutes -- in effect allowing Congress to grant the president more authority. Which Congress promptly did. It passed the Military Commissions Act of 2006, eliminating all meaningful judicial review of the Justice Dept.'s treatment of alleged enemy combatants by habeas corpus or otherwise, thereby setting the stage for a head-on constitutional clash in Boumediene. In a strongly worded opinion by Justice Anthony M. Kennedy, the current swing vote in these cases, a 5-4 majority rebuffed both the president and Congress.

The court first reaffirmed that because Washington exercises total control over Guantanamo, it is indeed a part of the United States and habeas corpus is available to those held there. The court then ruled that the U.S. Constitution separate powers clauses establishes an irreplaceable role for the judiciary. This was why the habeas corpus writ was first devised. The court ruled that Congress' effort to replace the writ with a military hearing and limited judicial review was unconstitutional.

Chief Justice John Roberts, writing for the four dissenters -- himself and Justices Antonin Scalia, Samuel Alito and Thomas -- protested that the court had struck down "as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Hardly. Even allowing for a dissenter's right to hyperbole, Roberts' claim is demonstrably wrong. The military hearing and judicial review established by Congress are separately and together "inadequate."

The military hearing phase was created in response to the Hamdi case. In July 2004 the Defense Dept. created Combatant Status Review Tribunals, or CSRTs, to determine which of the approximately 775 aliens picked up in Afghanistan, Bosnia, Gambia and elsewhere were "enemy combatants," subject to detention until the "war on terror" ended.

Within four to six months, approximately 560 CSRTs were rushed through. Detainees were not allowed counsel, but were given a member of the military, a "Personal Representative," to help them with their defense. Though, in Hamdi, the Supreme Court had insisted that detainees be told the facts behind their detention, and ensured a "fair opportunity to rebut the government's factual assertion before a neutral decision-maker," that opportunity was rarely, if ever, provided.

First, the Detainee Treatment Act of 2005, (DTA) authorizes the CSRTs to use evidence obtained by "coercion" if it is "probative." No civilized country allows such evidence and no habeas court would admit it. Nonetheless, coercion was used routinely at Guantanamo and the information was used in the CSRTs. For example, Mamdouh Habib testified that he had been sent by the United States to Egypt, where he was subjected to severe beatings, locked in handcuffs in a room that filled with water to just below his chin as he stood for hours and suspended from a wall with his feet on an electrified cylindrical drum. While undergoing this, he admitted to many things he later claimed never to have done, which the CSRT used to find him an enemy combatant. It never bothered to decide whether he had, in fact, been tortured.

Second, the detainees were not told the facts behind their detention -- as the Hamdi decision required -- because the CSRTs almost always relied on classified information. For example, Mustafa Ait Idr, who was picked up in Bosnia, was charged with "associating with a known al Qaeda operative" while living there. When Idr asked for the operative's name, the following took place:

Tribunal President: I do not know.

Detainee: How can I respond to this?

Tribunal President: Did you know of anybody that was a member of Al Qaeda?

Detainee: No, no... I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.

Third, the Personal Representative rarely if ever tried to find exculpatory evidence. Lt. Col. Stephen Abraham, a decorated reserve officer with 25 years of intelligence work, reviewed the process. In affidavits submitted last year he revealed that: detainees' claims were not checked; readily available unclassified sources that might corroborate detainee statements were not investigated, detainees were unable to obtain evidence from witnesses they identified and, in general, requests by a detainee were often ignored.

One example is the case of Murat Kurnaz, a Turkish national who is a German permanent resident. Two years after being picked up in Pakistan, Kurnaz was told at his CSRT that he was being held because he had associated with a Selcuk Belgin, an alleged terrorist who had blown himself up in a suicide bombing while Kurnaz was in detention.

All that Kurnaz could do at his CSRT was to reply "I never had any reason to suspect he was a terrorist." In a later court proceedings, Kurnaz got a lawyer. Within 24 hours, the lawyer had exculpatory affidavits not only from the German prosecutor but from Belgin-- who was alive and well in Germany, a Dresden resident not involved in terrorism.

An additional problem for a detainee, as noted by Kennedy, is that "there are in effect no limits on hearsay . . . [which under DOD rules need only be] 'relevant and helpful' . . .[so that] the detainee's opportunity to question witnesses is likely to be more theoretical than real."

Finally, the CSRT tribunal is not neutral, but part of the military chain of command. It is not designed so that two sides challenge each other and an impartial tribunal decides, but simply to accuse the detainee. The Defense Dept. has admitted that in the rare cases where a detainee was found not to be an enemy combatant, the CSRT was redone.

The judicial review of the CSRTs is also flawed. Though habeas corpus is crucial to the rule of law, it can be replaced by a procedure equally protective. This means that the substitute must not only ensure that the procedures comport with due process of law but also that the findings are factually sound. The court must therefore be able to hear any exculpatory evidence unavailable to the initial tribunal.

Though the administration argued that the DTA provided an adequate substitute, the DTA does not allow the reviewing court to hear such new or exculpatory evidence -- only to decide whether the tribunal followed the CSRT procedures and whether they are lawful. DTA review also disallows challenges to general conditions of confinement or to the treatment of individual detainees, frequent subjects of habeas review.

Momentous as it is, the court's Boumediene decision leaves many questions unanswered. The court did not specify the procedures required for a CSRT to be constitutionally acceptable or the legal criteria for determining who is an enemy combatant. It also declined to decide whether habeas corpus is available to challenge conditions of confinement or treatment.

All these issues will have to be decided by the lower courts or Congress, and, ultimately, by the Supreme Court. This means that, after almost six-and-a-half years of confinement, the 270 or so Guantanamo detainees face more years of uncertainty.

Even apart from this, the story is far from over. The next president will have at least one, probably two and possibly three Supreme Court vacancies. All but the Hamdi ruling were bitterly divided decisions, in which the dissenters predicted the most dire consequences -- Scalia's warned in his Boumediene dissent that the decision "will almost certainly cause more Americans to be killed."

Though McCain's first reaction to Boumediene was measured, the day after the decision he called it "one of the worst decisions in the history of this country." He is trying to make it a campaign issue, since Obama praised the ruling. Since McCain has said he would appoint justices like Roberts and Alito, if he wins in November,then Boumediene, and probably Rasul, will almost certainly be either overturned or drained of any significance. Other national-security cases now on their way to the high court are likely to come out the same way.

One way or another, to cite Mr. Dooley, the Supreme Court will follow the election returns -- as always.

Captain Kangaroo's Wacky Guantanamo War-Crimes Trials

Spencer Ackerman — Mon, 16 Jun 2008 14:02:25 GMT

Speaking of kangaroo courts, Josh White had a great piece in the Washington Post yesterday about the military tribunals, known as military commissions, currently underway for the 9/11 conspirators held at Guantanamo. (The Justice Dept. is taking the position that last week's Boumediene ruling doesn't affect the tribunals.) The cases against them are, in many respects, predicated on classified information. A basic feature of any adversarial system of justice -- and particularly, you know, ours -- is that the accused has the right to view the evidence against him or her. Oh well.

Though the top legal adviser for the commissions process, Air Force Brig. Gen. Thomas W. Hartmann, has said that the trials would be "fair, just and transparent" and that detainees would have full access to the evidence against them, Pentagon officials have now backed off of those claims. The Office of Military Commissions said last week that defendants representing themselves might not get access to information about their interrogators and that secret information might have to be redacted in order to be shared with them.

"If classified information is presented to the jury, the accused will see it, no exceptions," according to the Office of Military Commissions' written responses to Washington Post questions about how the military commissions will deal with classified evidence in the Sept. 11 case. But a further explanation reveals that classified contents of certain materials could be replaced by summaries and blacked-out documents. "It is possible that an accused representing himself will not be able to directly review some evidence; in such circumstances, his standby defense counsel might be involved."

It is unclear, however, what role the standby counsel would be allowed to play and how far the judge would let him go in cooperating in their client's defense. Mohammed, Tawfiq bin Attash and Ali Abdul Aziz Ali have been approved to represent themselves at trial; Ramzi Binalshibh and Mustafa Ahmed al-Hawsawi have hearings pending to determine their competency to do so.

Get ready for another Supreme Court case.

Boumediene: Victory of Law

Aziz Huq — Fri, 13 Jun 2008 20:46:54 GMT

The Supreme Court’s decision in Boumediene v. Bush – available with supporting material here is a curious blend of exasperation at executive branch hypocrisy and judicial hesitation to push too hard at the bar of justice. The result is a certain victory for the rule of law -- but a new and unfortunate sort of uncertainty for the 270 detainees in the Cuban island prison.

Critically, the Boumediene decision leaves open many questions about how the Guantanamo detention facility can be wound down. But because the opinion imposes few practical constraints on the Bush administration’s ability to filibuster habeas cases, there is a risk that the White House and Dept, of Justice will continue to delay fair resolution of the detainees’ claims until after the November election, when it all becomes someone else’s problem.

Yet, at the threshold, the victory on Thursday for the rule of law should not be underplayed.

Since January 2002, the Justice Dept. and the White House have taken the position that courts have no power to review detention operations housed at Guantanamo.

Applied to battlefield captures in wartime, this claim may have seemed unremarkable. But the Guantanamo detentions broke new ground in two important ways. First, the administration declined to use battlefield screening hearings to sift actual combatants from innocent bystanders. In the diffuse and wide-ranging Afghan conflict, this inevitably led to erroneous detentions.

Second, Guantanamo was not limited to battlefield detentions. Some, like the petitioner Boumediene himself, were snatched from the peaceful streets of countries like Bosnia and Gambia, where there was no active war.

These two innovations meant that it was far from clear that all those at the base could be properly detained under international law. Compounding the illegality of detention at the base was the constellation of harsh interrogation practices and brutal treatment to which detainees have reportedly been routinely subjected.

All told, foolish mistakes and criminal brutality racked up to a heavy toll on the international reputation of the United States.

But the Supreme Court ruled in 2004 that the detainees did have a right, under federal statutes, to challenge their detention in habeas corpus. Then the administration went twice to limit the detainees’ right to invoke habeas corpus — protected in the original 1789 text of the U.S. Constitution — to challenge their detention. Thursday’s decision invalidates entirely the jurisdiction-stripping provision of the 2006 law, the Military Commissions Act, or MCA.

The core of the Thursday decision is twofold.

First, the court held that the Constitution guarantees the availability of habeas corpus to the Guantanamo detainees. As Justice David Souter noted in his concurrence, this outcome was clearly prefigured in the 2004 decision and ought to have come as no surprise to the administration. Only by deliberately blinking this clear signal could the administration and its allies continue to disregard the rule of law. And they should not be expressing any surprise at the court's decision.

Second, the court rejected the argument that Congress had created an adequate alternative to habeas review in what is known as the Detainee Treatment Act, or DTA. While the court enumerated several core differences, most critical was the fact that in habeas, prisoners have the right to make factual challenges -- whereas in the administration’s proposed outcome, factual challenges would be constrained.

Indeed, under the DTA, a detainee would only go to the court of Appeals, a tribunal with no power to make factual findings. In habeas, by contrast, the detainee will have a hearing in a district court, which routinely settles questions of fact through the examination of evidence.

This shift of forums is crucial, because it means the administration’s factual claims will be subjected to independent scrutiny. Since some of its claims are likely grounded on evidence gathered through coercion or torture, it seems likely they could founder.

Justice Anthony Kennedy’s majority opinion is remarkable for its note of genuine exasperation at the administration, which is evident throughout.

Describing the availability of habeas corpus, Kennedy cautions that it “must not be subject to manipulation by those whose power it is designed to restrain.” Rejecting the government’s arguments about military necessity, he finds “no credible arguments that the military mission at Guantanamo would be compromised” by habeas. And rejecting the notion that the court should let the DTA review procedures be played out, he rightly underscores the “exceptional” nature of the situation of Guantanamo, with its years-long detention.

The net result is a decisive reputation of the administration's assertions of lawless zones, of detentions based on facts conjured at the whim of an interrogator and of absolute executive discretion.

However, there is much that the court did not address—and its silences may end up being as important as what it did say.

First, the court did not take up the detainees’ invitation to define the bounds of the government’s detention power. Critically, though, the court did say this power rests on federal statutes -- rejecting, by implication, the administration’s fiercely argued contention that it has an inherent, and open-ended, constitutional power to detain people for national-security reasons.

This silence means that the district courts must now grapple in individual cases with thorny questions of the bounds of detention power. Each district court determination will be subject to appeal, first to the D.C. Circuit Court of Appeals. And second to the Supreme Court. It’s not hard to see that this is unlikely to be a brief process.

Second, as Chief Justice Roberts noted in his dissenting opinion, the habeas process on remand is “unsettled.” This means there will be plenty of opportunities for government lawyers to filibuster on threshold questions. While the court indicated its impatience with the long detentions, it did not signal clearly that additional delaying tactics ought not to be tolerated.

The result is that while the principle of legality—the idea that the law always applies—is affirmed, its exercise may be delayed. While we can celebrate the rejection of the extreme positions that the administration has cultivated since January 2002, the risk remains that this promise will remain abstract for too many of the detainees.

But principle can and should become facts on the ground. The Washington district courts have already indicated their intent to move forward, and have convened a conference of the lawyers. These courts should recognize the Supreme Court’s intolerance of executive hypocrisy and shilly-shallying. They should move swiftly to vindicate in practice the rights and ideals that the Supreme Court affirmed in its Thursday ruling -- deciding they could not be withdrawn under the rule of law.

Aziz Huq directs the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is the co-author, with Fritz Schwartz, of "Unchecked and Unbalanced:Presidential Power in a Time of Terror." He has written for New York Law Journal, The Washington Post and The Huffington Post.