Slate: The Obama administration has picked the worst possible case for its first torture trial

Torture Roulette
The Obama administration has picked the worst possible case for its first torture trial.
By Dahlia Lithwick
Posted Monday, Dec. 14, 2009, at 6:38 PM ET

For close to a year now, the Obama administration has been playing judicial Whac-a-Mole over accountability for Bush administration torture policies. Each time an opportunity arises to assess the legality of Bush-era torture, the Obama administration shuts it down. When another case pops up, the administration slaps it down. This all started last February when the Justice Department invoked the alarming "states secrets" privilege in an effort to shut down an ACLU lawsuit against Boeing subsidiary Jeppesen DataPlan Inc. for its role in Bush's "extraordinary rendition" program. (That case will be reheard at the 9th Circuit tomorrow).

Since then, Attorney General Eric Holder's Justice Department has worked tirelessly to shutter or pre-empt torture litigation in cases ranging from a civil suit against former Bush lawyer John Yoo filed by Jose Padilla, (in which the Obama administration has now taken the position that Justice Department lawyers' advice on torture issues should have absolute immunity from lawsuits) to shifting its position on the release of torture photos.

This morning, and with the blessing of the Obama administration, the Supreme Court declined to revisit an appeals court ruling dismissing a lawsuit filed by four British citizens released from Guantanamo in 2004. The men sued former Defense Secretary Donald Rumsfeld and 10 military officials for alleged acts of torture and religious abuse. The Obama Justice Department urged the court not to hear the appeal, claiming the lower court got it right when it determined, among other things, that Guantanamo detainees were not "persons" for purposes of American law and that "torture is a foreseeable consequence of the military's detention of suspected enemy combatants." Lawyers for the detainees asked the court to hear the appeal because, "[l]eft in place, the court of appeals' decision will be a final assertion of judicial indifference in the face of calculated torture and humiliation of Muslims in their religion."

No luck. That means today yet another path to accountability for government-sanctioned torture was blocked at the starting gate. To be clear, it's not that torture victims are losing these trials. They can't even find their way into a courtroom. And, time after time, it's the Obama administration barring the door.

In a conference call with reporters late last week, ACLU lawyers pointed out that, as of this month, not a single torture victim has had his day in court, and that no court has yet ruled on the legality of the Bush-era torture policies. Jameel Jaffer, director of the ACLU's National Security Project, put it bluntly: "On every front, the [Obama] administration is actively obstructing accountability. This administration is shielding Bush administration officials from civil liability, criminal investigation and even public scrutiny for their role in authorizing torture." Jaffer added that "The Bush administration constructed a legal framework for torture. Now the Obama administration is constructing a legal framework for impunity."

There's been a good deal of speculation as to why the Obama administration has worked so hard to keep courts from scrutinizing Bush-era torture policies. In its pleadings, the Justice Department continues to take the position that courts shouldn't usurp executive authority over national defense. But the practical effect of this effort will be to ratify such policies and the legal architecture that supports them. As Scott Horton explains, "the path to a renewal of the criminal misconduct of the Bush years is being prepared right now. And Obama Justice Department lawyers are doing the work." Christopher Anders, ACLU senior legislative counsel, also noted in last week's conference call that because the statute of limitations for prosecuting torture is eight years, those pushing for accountability will begin to bump up against the stature for acts committed in 2002 as soon as this spring.

There's one other practical result of foreclosing every possible effort to litigate the legality of torture: The Khalid Sheikh Mohammed trial in New York will now become the only forum in which we consider it. That possibility is already being used by Dick Cheney, Rudy Giuliani, and other torture cheerleaders to discredit the New York trials. The Obama stance on torture litigation has only strengthened their argument.

Just last week, Sean Hannity asked Cheney whether the goal of the KSM trial was, in part "to put our CIA on trial? To put you on trial? To put President Bush on trial?" Cheney responded, "It could be. It could be that Holder expects to be able to use this to go back and sort of review in depth the Bush-Cheney administration policies in terms of what we did to prevent attacks against the United States."

Then again this morning, Hannity reprised that line of questioning in an interview with Giuliani: "Do you think as I do, and we brought this up earlier in the week with former Vice President Cheney, do you think this is about putting George Bush on trial? Putting Guantanamo Bay on trial? Putting the vice president on trial? Putting the United States on trial—enhanced interrogations?" Giuliani replied that "[t]he defense will be putting the government on trial for their unfair methods, for alleged torture. I mean, I don't think a lot of it is torture, but they will allege that it is torture. Of course, a lot of it will be exaggerated. A lot of it will be lies. A lot of it will be fictitious. And it will focus attention on what allegedly America did wrong as opposed to the horrible acts of terrorism that were perpetrated on innocent New Yorkers."

Hannity, Cheney, and Giuliani are probably right about this. The Obama administration continues to sit on the report out of the Office of Professional Responsibility on whether Bush DoJ lawyers violated their professional ethics by approving torture. It continues to block every torture suit even before it starts and to limit torture investigations and hamper the release of torture information. In doing all that it almost ensures that America will have its first opportunity to debate the legality of torture in the least attractive forum imaginable: the criminal trial of a man most of us would kind of like to torture ourselves.

The Obama administration wants to turn the page on torture. Move on. Forgive and forget. Got it. I saw Invictus too. But the torture and even murder of U.S. prisoners on our watch has already bled through onto the next page. And the page after that one. If it's true that prisoner torture claims just aren't going away, the administration should think very hard about where they ought to be litigated.

The Obama administration says it deplores the use of torture, that torture is illegal. Period. But even as it refuses to let the courts address the torture perpetrated by the Bush administration in every other context, it's about to launch a major criminal trial for the man who is a walking commercial for the proposition that the benefits of torture may sometimes outweigh the costs. The administration has now made it impossible to test the legality of torture in the case of Maher Arar—a man who was plainly innocent—or in the case of the four British Guantanamo detainees. We can't look at torture as framed by John Yoo's legal advice. So instead, as Hannity explained this morning, the headlines in the KSM case will be, "Khalid Sheikh Mohammed accuses the U.S. of waterboarding me 180 times." And, as Cheney pointed out last week, many of not most Americans will respond by saying "Hey! Why not 181?" There won't be any other headlines to compete.

KSM is a monster. Nobody disputes that he was central to the planning and execution of the attacks on the Twin Towers and the Pentagon. If the trial of a man who was instrumental in killing thousands of innocent Americans becomes the sole forum in which the legality of prisoner abuse is to be litigated, public sentiment in favor of torture will only grow stronger. As David Feige argued recently in Slate, the KSM trial is poised to make a lot of bad new law as a result of the pressure to convict. But the most appalling result might well be a judicial determination followed by widespread public acceptance that torturing KSM wasn't that bad. The Obama administration will have been instrumental in selling the public on future torture in a way that is even more distressing than its recent efforts to immunize the torturers themselves.

Had Holder allowed the various other torture trials to go forward, some of the litigants would prevail and others would lose. We would end up with a fuller picture of the rendition program, CIA abuses, and the legal advice that allowed for water-boarding. We would have a set of courts piecing together a consensus on what the anti-torture statutes require and whether anyone has violated them. Instead, the KSM trial is about to become the only torture game in town. And it's a game the Obama administration cannot win.

Dahlia Lithwick is a Slate senior editor.

Article URL: http://www.slate.com/id/2238568/

Outside support

isnt there any way of getting any support from other nations and the U.N.
Its not like these are all americans that were tortured.
I am very supprised that it hasnt happened. and not only that, if ever another case of torture in any other nation was to happen. We will have to go with our laws that makes it lawfull to torture. with no legal ramifications

wondering. . .

. . . how is that "The Obama administration has picked the worst possible case for its first torture trial?" and that "the KSM trial is about to become the only torture game in town. And it's a game the Obama administration cannot win?"

as the article elsewhere makes clear, bush, cheney, obama, and holder are all on the same page when it comes to torture. and all four will surely welcome that "the headlines in the KSM case will be, 'Khalid Sheikh Mohammed accuses the U.S. of waterboarding me 180 times.' And, as Cheney pointed out last week, many of not most Americans will respond by saying 'Hey! Why not 181?'" this is precisely the result team torture seeks.

thus, the headline above should read, "The Obama administration has picked the BEST possible case for its first torture trial." and the closing comments should read "...the KSM trial is about to become the only torture game in town. And it's a game the Obama administration cannot LOSE."

cheney and giuliani may now be relegated to the status of "torture cheerleaders," as the article observes, but obama and holder are the current "all stars" on team torture.

Kind of

Dahlia Lithwick says: "KSM is a monster. Nobody disputes that he was central to the planning and execution of the attacks on the Twin Towers and the Pentagon."

Nobody disputes? Sounds about right, coming from a top-down establishment rag like Slate.

Then...

"In doing all that it almost ensures that America will have its first opportunity to debate the legality of torture in the least attractive forum imaginable: the criminal trial of a man most of us would kind of like to torture ourselves."

Is an editor at Slate a wannabe torturer? I wonder who else she would "kind of like" to torture. Her boss? Next door neighbor?

It's amazing how many are

It's amazing how many are pronouncing these accused guilty before the evidence is presented. While they might be... what evidence are THEY basing their statements?

And don't they realize that they are jeopardizing the trial by influencing the jury????

Just Where Is That Evidence?

My thoughts exactly. Just where is that evidence against KSM? During the trial will much of it be kept from the public under the guise of national security?

If KSM was actually one of the players in the 911 attacks and he's not just a martyr wannabe, how he is questioned might lead to clues regarding who orchestrated the attacks. But I would be surprised if we will see any questioning of this nature.

I just want to add

that I post some of these mainstream articles not to show agreement with them but to remind us what is being said out there.

Just sharing information. :-)

Did torture work as advertised?

No. Torture cheerleaders don't like to talk about FBI agent Ali Soufan's testimony in which he stated that torture didn't work. We also don't hear much about the consequences of using torture--increased attacks against soldiers, increased terrorist recruiting, false confessions which waste law enforcement time, disgraces all US citizens, etc.

The big lie is that torture was an effective interrogation method. Soufan stated that he was getting solid information with legal interrogation methods until for some unknown reason he was replaced by the stupid CIA torture program. One should note that not one of the pro-torture officials in government has accounted for their bizarre pre-9/11 conduct (i.e. Tenet, Black, Blee, Hayden, etc.).

KSM is a monster.. No!

KSM is a monster..

No! he is an alleged monster .It is the torturers themselves and the people who ordered that torture who are the only proven monsters at this point in time.My personal view is that I don,t care what KSM says at his trial because anything he says would already be deemed inadmissable in any decent society.This trial has greater ramifications than one man, the whole of the American justice system will be on trial in front of the whole world.I hope it passes the test but I fear it will fail and that should instill fear in everybody,none more so than Americans themselves.