Emily Bazelon recently chatted online with readers about this article. Read the transcript.
4. United States v. Jawad and United States v. Khadr
Moving to the appeals courts, a stream of petitions has been brought by the Guantanamo detainees whom the Bush administration deemed enemy combatants. It's time for the administration to sort through the remaining 248 detainees. (More here from Dahlia Lithwick on that.) The president has halted the planned military commission trials at Guantanamo, and now the Obama lawyers should decide whom to charge. Most importantly, the new DoJ should stand up for the principle that the government can't detain people outside the fabric of constitutional law.
Mohammed Jawad was 16 or 17 when he was captured by the Afghan police in 2002 for allegedly throwing a grenade that severely injured American soldiers and an Afghan translator. While in Guantanamo, he says, he has been subjected to sleep deprivation and coerced into making a false confession. The former lead prosecutor in his case before the military tribunal now has switched sides and supports his appeal; he says that Jawad poses no current danger and should be sent home.
Omar Khadr is accused of killing a U.S. soldier in Afghanistan in 2002. The Canadian was 15 when he was taken into American custody. He says he was tortured and mistreated by the United States at Bagram Air Force Base and Guantanamo. Last summer, his lawyers released a video showing him crying and begging to be released. In November, a federal judge sent Khadr back to Bush's military commission system, which Obama halted at the beginning of his presidency. The Obama DoJ should either try Khadr in federal court or send him back to Canada.
5. Arar v. Ashcroft and Mohamed v. Jeppesen Dataplan
We know what happened to Maher Arar because the Canadian government has thoroughly investigated his experience of extraordinary rendition. In 2002, agents of the United States, whom the Canadians did not stop, shipped off Arar to Syria, where he was tortured while being interrogated for a year for his suspected links to al-Qaida. The Canadian government cleared Arar in 2006, apologized, and awarded him $10 million. Condoleezza Rice's State Department admitted that it mishandled his case. Arar wants redress in U.S. courts, under American law, to hold U.S. officials responsible.
Unlike the Canadians, the Bush administration refused to apologize and settle. Instead, its DoJ argued that neither the Constitution nor any federal statute (including the Torture Victim Protection Act) protects Arar, and further that the inquiry he wanted would require revealing "state secrets." A three-judge panel of the 2nd Circuit found additional reasons to cut off Arar from being heard in U.S. courts, but the full court, which heard argument in December, is reconsidering the case. Obama's DoJ should tell the court it need not rule, because the government is dropping the Bush position that Arar has no access to U.S. courts, and ask for time to reach a fair settlement with him.
In another case about extraordinary rendition and state secrets, five men who say the United States tortured them abroad are suing private contractor Jeppesen Dataplan for setting up the flights that took them to secret American prisons in Afghanistan, Pakistan, and elsewhere. The Bush administration intervened in the case to shield itself and private contractors, and said that the subject matter of the suit is a state secret. The district court dismissed the case without independent inquiry into whether the information was really secret. The 9th Circuit hears arguments in this case today; the Obama DoJ should live up to the administration's commitment to transparency and drop the blanket state-secrets defense so that these men can present relevant evidence.
6. Rasul v. Myers, Ashcroft v. Iqbal, Padilla v. Rumsfeld,and Padilla v. Yoo
Several other cases also raise questions about how to redress the wrongs of torture and detention: In Rasul v. Myers, four British detainees held for two years at Guantanamo are suing for damages based on their allegations that they were tortured (beaten and shackled) and suffered religious discrimination (desecration of the Quran). Last year, the D.C. Circuit dismissed their claims by accepting the Bush administration's argument that the men could not sue under the Geneva Conventions, the U.S. Constitution, or a federal anti-discrimination law. (For that last one, the court had to rule that the detainees did not qualify as "persons" under the relevant statute.) The D.C. Circuit also said that even assuming the suit could proceed, the officials being sued had qualified immunity, meaning they shouldn't be held responsible because they couldn't have reasonably been expected to know that what they did was illegal.
We know that the new DoJ is under a great deal of pressure to protect government officials from liability. But that's not what its pronounced commitments to accountability and responsibility permit. In Ashcroft v. Iqbal, argued before the Supreme Court in December before Obama took office, Bush lawyers tried to stop another lawsuit dead in its tracks with the claim that high-level officials should not even have to answer complaints brought against them.
The new government should take the bold step of retracting that position and accepting the obligation of government to account for its actions. In all of these cases, Obama's lawyers don't have to abandon the defense of "qualified immunity." But the DoJ should stop using it as an absolute shield. The rule should be that the government accedes to hearings on whether, given the relevant facts, government officials can convince judges that what they did at the time was based on their reasonable "good faith" belief that their actions were constitutional. This would open up another question: Can government officials use the torture memos as alibis? That is exactly the question that lawyers and judges should face.
The torture memos loom large in Padilla v. Rumsfeld and Padilla v. Yoo, which are also about redressing the wrong of mistreatment and alleged torture and whether high-level officials are immune to suit. Jose Padilla, an American citizen arrested in the Chicago airport and thrown into a military brig on never-proven "dirty bomber" charges, sued the officials whom his lawyers think are responsible for his detention and the mistreatment he endured in prison. (The stories of his deterioration are deeply disturbing.) These suits request vindication, not money—asking only $1 in damages. The Obama administration should respond by admitting wrongdoing and apologizing as well as by releasing still-secret DoJ memos (which the next case on our list also seeks).