Back to News & Commentary

A Framework for Impunity

Jameel Jaffer,
Director, Knight First Amendment Institute
Share This Page
December 10, 2009

(Originally posted on Daily Kos.)

Since 2003, the ACLU and other U.S. human rights organizations have filed dozens of cases relating to the abuse and torture of prisoners. Some of these cases seek to enforce requests under the Freedom of Information Act. Others seek to impose civil liability on those who authorized or perpetrated the abuse.

Since 2005, the ACLU has also advocated for the appointment of an independent prosecutor to examine issues of criminal responsibility. Since a prosecutor was appointed in August, we have advocated for an expansion of the prosecutor's mandate.

These efforts have been intended to serve several ends: To create a public record of the Bush administration's policies and their consequences; to obtain recognition and compensation for torture victims; to ensure that government officials who violated the law are held to account; and to reduce the likelihood that the abuses of the last administration are repeated by the current administration, or by a future one.

We had hoped, and expected, that the Obama administration would share our commitment to most if not all of these ends. The administration promised accountability, and initially it seemed ready to deliver. Immediately after taking office, President Obama disavowed torture and shuttered the CIA's black sites. Two months later, he agreed to release the Justice Department legal memos that sought to authorize torture.

But notwithstanding those early decisions, the administration has not made good on its promise of accountability. Now the administration is suppressing the evidence rather than disclosing it, and protecting torturers instead of investigating them. It is shielding Bush administration officials from civil liability, criminal investigation, and even public scrutiny.

  • In FOIA suits, the administration is withholding key documents relating to the CIA's rendition, detention, and interrogation program. And it affirmatively supported new legislation to suppress photographs depicting the abuse of prisoners in defense Department custody.
  • In civil damages suits, the administration has urged courts not to allow torture victims to bring claims under the Constitution. It has argued that officials should be immune from suit because it was not "clearly established" between 2002 and 2004 that torturing prisoners at Guantanamo was illegal. And in cases relating to the CIA, it has invoked the state secrets privilege to shut down lawsuits at the very outset.
  • With respect to the criminal investigation initiated in August, the administration has offered a kind of immunity to interrogators who relied on the torture memos while also declining, at least so far, to investigate those who wrote the memos or authorized torture.

The Bush administration constructed a legal framework for torture, but the Obama administration is constructing a legal framework for impunity.

The issue of accountability will come to the fore once again over the next few weeks. On December 15th, the ACLU will argue before an en banc panel of the Ninth Circuit in Mohamed, et al. v. Jeppesen, a case concerning the CIA's rendition program. On December 16th and 23rd, the CIA is due to hand over to the ACLU documents relating to secret prisons overseas. And the Justice Department is expected imminently to release a report, written by the Office of Professional Responsibility, that examines the conduct of the lawyers who wrote the torture memos.

It's not too late for the Obama administration to reconsider the positions it has taken in court. And it's not too late for the Justice Department to expand the scope of the criminal investigation it initiated in August. But if the administration doesn't change course, it will accomplish something that the Bush administration never managed: It will institutionalize a sweeping immunity doctrine for torturers.

Learn More About the Issues on This Page