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The Accountability Shell Game

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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September 9, 2011

There are many awful legacies of the Bush administration’s criminal embrace of torture in the months and years following the 9/11 attacks. Among the most agonizing — for the torture victims themselves, and for the lawyers who have represented them — is that not a single one of those victims has had his day in court. And not a single court that has been faced with a torture suit has addressed the core question of whether the victims’ legal rights were violated.

This is, of course, a tragedy for the victims, who must live with the twin traumas of having been tortured by the state and turned away by its courts. But it is also a grave threat to the rule of law. Without definitive adjudication of the legality of torture, we face the risk that the door has been left open to future abuses.

“Today, we have a state of affairs that should be a source of shame to all Americans: not a single victim of the Bush administration’s torture regime has had his day in court. And not a single court that was faced with a torture suit has addressed the core question of whether the victims’ legal rights were violated”

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Of course, the courts are not alone in turning a blind eye to torture victims; both the Bush and Obama administrations have actively subverted victims’ attempts to obtain compensation and redress. Indeed, each of the democratic institutions that should have provided a check on abuses — and a remedy for the abused — has instead engaged in a kind of accountability shell game.

ACLU client Khaled El-Masri’s case is illustrative. In a notorious case of mistaken identity, El-Masri, a German citizen, was kidnapped by the CIA in Macedonia, “rendered” to a CIA black site in Afghanistan, detained and tortured for several months, then released without apology or explanation. When a German reporter asked Secretary of State Condoleezza Rice whether the United States would provide redress for its horrific abuse of El-Masri, she responded: “When mistakes are made, we work very hard to rectify them. I believe that this will be handled in the proper courts, here in Germany and if necessary in American courts as well.”

El-Masri sought to bring his claims to those “proper courts,” both in the United States and in Germany. But this was a bait and switch: rather than “handle” El-Masri’s claims, the American courts told El-Masri, at the insistence of the executive, that he had come to the wrong place. “If El-Masri’s allegations are true or essentially true,” wrote a federal judge, “then all fair-minded people . . . must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy. Yet, it is also clear . . . that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch.” We now know — through documents released by Wikileaks — that Secretary Rice’s State Department expended considerable diplomatic resources in seeking to terminate El-Masri’s judicial proceedings in Germany, as well.

El-Masri was not alone. When five other victims of the CIA’s extraordinary rendition program, also represented by the ACLU, sought judicial redress against a government contractor that had knowingly profited from arranging their torture flights, the court told them, in effect, to look elsewhere: “Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warranted for any of the plaintiffs.” The executive branch, the court insisted could “determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights.” And if that didn’t work, “Congress also has the power to enact private bills.” This was doubly absurd: Congress, of course, had already enacted public bills prohibiting torture — the very laws that the executive had violated and the courts had disregarded.

ACLU client Jose Padilla encountered a different version of the accountability shell game: two courts pointing the finger at each other. Padilla, an American citizen, was seized by the military from a New York jail, unilaterally designated an “enemy combatant” by the president, detained incommunicado without charge or trial in a Naval brig in Charleston, South Carolina, and subjected to vicious interrogations, chilling sensory deprivation, and total isolation. After three years and eight months of illegal military detention, Padilla was returned to the civilian justice system and prosecuted for crimes wholly unrelated to his dubious “enemy combatant” designation.

When Padilla sued his torturers, seeking one dollar in compensation as well as recognition that his rights had been violated, he was told, remarkably, that he had already had ample opportunity to air his grievances. “It is not as if the American judicial system has failed to afford [Padilla] significant opportunities to vindicate his legal rights,” opined the judge. In particular, Padilla “was allowed in his criminal proceeding to raise issues of his detention in support of his motion to dismiss the criminal charges.” But the judge declined to mention that when Padilla had attempted to raise those issues in his criminal case, he was told that he was in the wrong venue, and that he was “free to institute . . . an action for monetary damages or any other form of redress that he is legally entitled to pursue.”

“It ain’t me, babe,” sings Bob Dylan in a famous lyric. “It ain’t me you’re looking for.” This has been the unvarying response of our courts and our Presidents to the powerful legal and moral claims of torture victims. The best that can be said about this chronic institutional buck-passing is that it betrays a degree of shame.

That shame now belongs to all Americans. These terrible things were done in our name. And the failure to acknowledge the victims has been carried out in our name as well.

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