Congress gives the 2002 torture memos a weird upside.

The law, lawyers, and the court.
Oct. 27 2006 6:24 AM

When the Justice Department Played Defense

Congress gives the 2002 torture memos a weird upside.

In 2004, we learned that our government's lawyers had privately opined that inflicting intense physical and mental pressures on people was not really torture. A person's organs had to be failing for harm to rise to the level of torture, the Justice Department's 2002 memos argued, and, moreover, torture required the specific intent "to inflict excruciating and agonizing physical and mental pain or suffering." The memos also claimed that the president, when acting as commander in chief during a war, was not bound by various treaties and conventions the United States has signed, nor constrained by domestic law, in authorizing interrogation procedures.

Why were these memos written? The United States has constitutional guarantees against mistreatment and had joined with nations around the world in a treaty banning torture. Anyone charging such harms had rights under American law to go to court seeking protection and redress. By putting these noxious and faulty arguments on Department of Justice stationery, Bush administration lawyers sought to manufacture legal defenses for interrogators and others involved in the mistreatment of detainees.

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Which means that, in retrospect, these horrible memos can be read to have one upside. In 2002, government lawyers still assumed that courts would be open. Members of our government thought that the United States would have to explain itself, at some time in some public court. But after last week's signing into law of the Military Commissions Act of 2006, that prospect became more remote.

The new law tries to block all the legal avenues that mistreated detainees have had. (I use the word "tries" because I, among many others, think the legislation, if read that way, is unconstitutional.) According to the MCA, "no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of enactment … relating to the prosecution, trial, or judgment of a military commission … including challenges to the lawfulness of procedures of military commissions under this chapter." This provision seeks both to block pending federal cases filed during the last few years by hundreds of Guantanamo detainees and to preclude new cases. The MCA goes yet further: "No person may invoke the Geneva conventions or any protocols thereto, in any habeas or civil action." Other sections purport to reiterate the United States' commitments against torture, but without any mechanism—save blind trust in government officials—to enforce them.

Two kinds of harms flow from this attempt to shut off court review. The first and obvious one is that detainees are left totally dependent on their keepers for safety and fair treatment. Given the record of Abu Ghraib and Guantanamo, that is painfully inadequate. The second is that the public loses all ability to understand either the detainees' claims or the government's responses. We, too, become dependent—on the partisans on both sides—for information about what is going on in Guantanamo Bay, at the CIA's secret prisons abroad, and in the administration's "war on terror."

Closing court doors is a radical departure from historic practices. Public adjudication predates democracy. Kings and emperors put their own judges in front of the local populace to render judgment. The sanctions these judges imposed, from flogging to executions, took place in town squares, as public spectacles. In city-states around Europe, rulers used the public performance of trial, conviction, and execution to show they had the power to make and keep the peace. And by doing so in public, they revealed that their authority rested, in some respects, on local popular support.

Over the last few centuries, democratic values required governments to gain the consent of the governed. And, democracy imbued the processes of judgment with new requirements. We now demand that judges be independent from the executive. Through our constitutions, both state and federal, we insist that courts be presumptively open so that anyone can watch their exercise of state power. During the last half-century, adjudication has become a means of recognizing that all humans have dignity and are entitled to protection against the arbitrary power of the state. Courts are a vehicle in which to enact and enforce these rights.

The MCA breaks with all of these norms. The act gives the executive branch the power to pick up people anywhere, call them "alien unlawful enemy combatants," hold them, and then send whomever it wants through a process of military commissions. (What happens to the rest is not made clear.) Further, the act authorizes the executive to select unilaterally the officials who will sit in judgment and hold the power to sentence a prisoner to years in prison or to death, if the president signs off. The executive branch also decides the rules of evidence. And the military decision-makers—we should not call them judges—have the power to "close to the public all or part of the proceedings" if they claim a need to do so. They can even exclude the accused. Along with these one-of-a-kind procedures, the MCA leaves to the military commissions the decision about whether or not to accept evidence obtained through coercion (read torture).

In all these ways, the MCA undermines the historical commitment to open courts and independent judges. And this legislation is not the only recent effort to cut into the fabric of laws that have developed to control state power through litigation. Over the last decade, Congress and the courts have narrowed the rights of regular prisoners as well. Though they're not subject to the crippling restrictions of the MCA, ordinary criminal defendants and prisoners have less protection from unreasonable search and seizure, less protection from abusive conditions in prisons, and less opportunity to be heard in court than they did 15 years ago.

The incarcerated are not the only ones to feel the harms that result. By trying to shut down judicial review, the MCA hopes to cut short the national debate about detainee treatment that came to the fore with the disclosure of the 2002 torture memos. The MCA's backers claimed they tried to stop torture, but their new law doesn't reject all that the torture memos helped to create. It tries, instead, to hide the injuries being inflicted on both the detainees and our legal commitments.

Judith Resnik is the Arthur Liman professor of law at Yale Law School.