No wonder President George W. Bush can now openly brag about the water-boarding policy he once denied even existed. The courts have become complicit in the great American cop-out on torture. As Arar's attorney Cole explains, in a 2009 speech arguing against the creation of a commission to investigate torture, President Obama insisted that torture suits being filed in the courts would offer sufficient accountability. But since then his administration has acted to thwart every one of those lawsuits and weighed in on the side of the torturers. The courts now refuse to consider the torture issue because it's for the president and Congress to set policy. The president promises that vindication will come from the courts. Each branch of government hides behind the others. This is the separation of powers turned into a constitutional shell game that exists only to evade responsibility.
When the federal courts decide to leave torture policy to the other branches, they duck their judicial responsibility to enforce the torture and conspiracy statutes as well as the Constitution. Doing so under the blurry cover of leaving foreign policy and lawmaking matters to the other branches may seem like judicial modesty, but modesty isn't the sole objective when it comes to doing justice. And when the courts decline to even hear torture cases, they also evade their responsibility to the rest of the world. The 2nd Circuit grounded its dismissal of Arar's complaint in the argument that it should "hesitate" to address Arar's complaint because it "would have the natural tendency to affect diplomacy, foreign policy and the security of the nation." The Obama administration pressed the same rationale in asking the Supreme Court to decline to hear the case. But all this assumes that the court's inaction on the issue of torture would have no effect on American diplomacy, foreign policy, and security. As it turns out, nothing could be further from the truth.
Each time an American court refuses to hear a torture case, the diplomatic and political aftershocks among our allies grow louder. Maher Arar indicated this week that he is now cooperating with the Royal Canadian Mounted Police in a sweeping Canadian investigation of possible criminal wrongdoing by Syrian and American officials involved in his abuse. Americans may chuckle at the prospect of the Mounties conducting a criminal investigation into U.S. torture practices, but it will surely have diplomatic and political repercussions. By the same token, another rendition victim, Khaled El-Masri, also kidnapped and abused by U.S. forces and also turned away repeatedly from the U.S. courts, took his appeal to the European Court of Human Rights this week. Like Arar, Masri has given up on obtaining justice in the United States, and, like Arar, he will seek it through international processes. By pushing the torture question out of the U.S. justice system, we haven't made it go away. We've just ensured that it will be tried in courts around the world. The suggestion that all this evasion has no effect on U.S. diplomacy and foreign policy is absurd. It's just one more way of making the rest of the world clean up our moral messes.
Each of the three branches of government has worked together to prevent a national reckoning over torture. That doesn't mean such a reckoning won't happen. It will simply happen elsewhere, without U.S. participation or involvement or acceptance of responsibility. In the end, sending a torture victim abroad to get justice is just as cowardly as sending him abroad to be tortured.
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