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

The law, lawyers, and the court.
Dec. 14 2009 6:38 PM

Torture Roulette

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

Khalid Sheikh Mohammed. Click image to expand.
Waleed bin Attash and Khalid Sheikh Mohammed

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).

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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 if 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.