It's pretty much a given that our "terror trials" aren't working. The long-awaited prosecutions of a fistful of prisoners at Guantanamo Bay—proceedings just getting under way after more than six years of tinkering—are barely moving forward, for reasons now having more to do with politics than law. Evidence is flimsy and stale, and prisoners claiming to have been aggressively interrogated and subject to involuntary use of drugs are now refusing to participate in their trials. There may yet be verdicts at Guantanamo. But following years of abuse, neglect, and extreme secrecy, there won't be justice.
The other place we won't see legal accountability is at the upper levels of the Bush administration, where evidence of lawbreaking is largely dismissed or ignored. I want to be clear that there is no moral equivalence between the actions of members of the Bush administration and those of alleged "enemy combatants" at Guantanamo. But both the tribunals at Guantanamo and the wrongdoing in the Bush administration reflect how legal processes can fail under extreme political pressure.
Outside of the Bush administration, there is near-universal bipartisan agreement that Guantanamo should be shut down and the military commissions scrapped. Certainly a compelling case could have been made for Nuremburg-style trials for some of the prisoners held there—such as Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks. But the CIA has admitted that Mohammed was water-boarded, rendering his confession unreliable and any possible subsequent conviction a sham. And even if we do press forward with this clutch of trials for terrorists at Guantanamo, there still remain almost 300 detainees at the base who've been jailed there for years without charges. At least some of them were turned in by Afghan captors for bounties, averaging $5,000 per head. Others are held based on the coerced testimony of their confederates. Some have been subjected to multiple preliminary status hearings (known as Combatant Status Review Tribunals) when they weren't found to be "enemy combatants" the first time around.
Full and fair trials might have happened for enemy combatants swept up after 9/11, but political missteps too numerous to detail have resulted in a process that now exists solely to prove to the world that these detentions were justified; that the captives are—as former Defense Secretary Donald Rumsfeld famously called them—"the worst of the worst." That's a political conclusion, not a legal one. And it's why Col. Morris Davis, former chief prosecutor for the military commissions at Guantanamo, resigned last fall, claiming political interference in the trials had created the perception of a "rigged process stacked against the accused." Davis later told The Nation that in a conversation with then-Pentagon general counsel William Haynes in 2005, Haynes told him flatly, "We can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions." Haynes resigned shortly after that conversation was reported.
Bad evidence, tortured testimony, delay, error, the guilty prisoners jumbled up with merely unlucky ones, and the necessity of politically motivated convictions over truth-seeking. But politics won't keep just the Gitmo prisoners from getting a fair trial. Politics will also keep those responsible for any alleged lawbreaking at Guantanamo from ever having to defend their actions in a court of law.
The legal question should have been a straightforward one: If prisoners were illegally tortured at Guantanamo and Abu Ghraib, who was responsible? On April 1, an 81-page "torture" memo produced by John Yoo, second in command at the Justice Department's Office of Legal Counsel from 2002 to 2003, was declassified. Along with its assertions of nearly unchecked presidential power, Yoo's 2003 memo argued that military interrogators could subject suspected terrorists to harsh treatment so long as it didn't cause "death, organ failure or permanent damage." (Yoo's memo was rescinded in December 2003.)
While it's arguable that Yoo was merely producing a theoretical, lawyerly opinion regarding the line between aggressive interrogation and abuse, the possibility is arising that—as Columbia Law School's Scott Horton suggested last week—"the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover."
Yoo's bloodless legal analysis—he calls it "boilerplate"—may well have opened the floodgates to multiple instances of prisoner torture and even death. Yet virtually nobody suggests he should be subject to legal consequences. Indeed, even the notion that he be relieved of his teaching post at University of California-Berkeley's Boalt Hall has been dismissed as a threat to "academic freedom."
Yoo's possible contributions to the normalization of torture at Guantanamo and beyond almost pale in comparison with another story that was all but ignored this month, when ABC News revealed that top Bush administration officials, including Dick Cheney, Condoleezza Rice, John Ashcroft, George Tenet, Colin Powell, and Donald Rumsfeld met several times in the White House to discuss specific torture techniques to be used against al-Qaida suspects in U.S. custody. This group together signed off on sleep deprivation, slapping, pushing, and water-boarding, in a manner "so detailed … some of the interrogation sessions were almost choreographed, down to the number of times CIA agents could use a specific tactic." Days later, President George W. Bush confirmed to ABC that he'd "approved" of these tactics.
According to a forthcoming book by Phillippe Sands, it's just not very hard to connect the dots here: "The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. [David] Addington, [Jay] Bybee, [Alberto] Gonzales, [Jim] Haynes, and [John] Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse." Yet, despite the fact that senior members of the Bush administration may well have violated the War Crimes Act of 1996, the Geneva Conventions, and the Uniform Code of Military Justice, there is scant serious talk of any accountability there, much less future legal prosecution. Yes, the Justice Department's Office of Professional Responsibility is investigating whether agency attorneys provided the White House and the CIA with faulty legal advice on interrogation. But as my colleague Emily Bazelon has observed, that's a little bit like setting the local meter maid at them.
Barack Obama recently pledged that if elected, he'd have his Justice Department immediately review whether crimes had been committed in the Bush White House. But virtually nobody truly believes that high-level architects of the American torture policy will face domestic criminal prosecution, even if domestic laws were broken. As Yale Law School's Jack Balkin pointed out, the political costs are too high: "One can imagine the screaming of countless pundits arguing that the Democrats were trying to criminalize political disagreements about foreign policy."
High-ranking administration officials and enemy combatants have little in common, and their respective acts of lawbreaking are not morally comparable. Still, their legal situations are weirdly parallel and show how the rule of law can fracture under the strain of politics. Those alleged lawbreakers at Guantanamo will never be acquitted for purely political—as opposed to legal—reasons. The alleged lawbreakers in the Bush administration will never be held to account on precisely the same grounds.
A version of this piece appears in this week's Newsweek.