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Should federal courts hear claims alleging torture by U.S. officials? They should indeed. Denying a federal forum for torture claims does not merely undermine the United States’ commitment to a universally condemned practice. It also weakens the institutional role of the courts as a check on executive power and tarnishes their reputation as guarantors of individual rights. There is no ambiguity about the legal status of torture: It is categorically prohibited under domestic and international law. In fact, the right to be free from torture is nonderogable, meaning that it cannot be violated at any time, even during war or emergency. There is also no question that after the Sept. 11, 2001, terrorist attacks, the United States sought to evade the prohibition against torture. The Bush administration labeled detainees “unlawful combatants” to deny them any legal protections, including under the Geneva Conventions. The Justice Department’s Office of Legal Counsel sought to define torture out of existence and claimed that the president could order torture, notwithstanding a federal criminal statute (18 U.S.C. �2340A) expressly forbidding it. These decisions paved the way for a series of “enhanced interrogation techniques” — Bush-speak for torture. These techniques include waterboarding, a practice that makes prisoners believe they are being drowned. The administration’s efforts to circumvent proscriptions against torture also led to widespread abuses at Guant�namo Bay, which soon migrated to Iraq, contributing to the torture scandal at Abu Ghraib. DENYING REMEDIES Yet federal courts have so far denied remedies to torture victims and failed to guarantee a meaningful inquiry into whether detainees are being held based upon coerced evidence. Two troubling cases involve the United States’ “extraordinary rendition” program, where individuals are transferred without judicial review to face likely torture in another country. In Arar v. Ashcroft, now on appeal to the U.S. Court of Appeals for the 2nd Circuit, Canadian citizen Maher Arar was seized by the United States in 2002 at JFK International Airport in New York while returning from a family vacation. Arar says that the United States rendered him for torture to Syria, where he was imprisoned in a dark, rat-infested cell, repeatedly beaten with a 2-inch-thick electric cable, and threatened with electric shocks. Arar was released after almost a year. No charges were filed. On the contrary, he was subsequently exonerated by a Canadian government commission and was awarded $10 million by Canada for its role in his illegal rendition. Ordinarily, federal courts afford a remedy to individuals under Bivens v. Six Unknown Named Agents (1971) when federal officials violate their constitutional rights. But the district court denied the possibility of a Bivens remedy because, it ruled, Arar’s case involved national security and foreign affairs. Unless Congress specifically created a cause of action, the district court said, judges should not intervene, even to remedy torture. The U.S. Court of Appeals for the 4th Circuit in March reached a similar result in El-Masri v. Tenet (2007). In that case, German citizen Khaled El-Masri was allegedly seized while on vacation in Macedonia, beaten by local police, and sent by masked CIA agents to a secret CIA-run prison in Afghanistan. El-Masri contends that the United States soon discovered that he had been mistakenly detained, but continued to hold him incommunicado for several months. The 4th Circuit dismissed El-Masri’s suit under the “state secrets” doctrine, finding that questions surrounding the United States’ role in his rendition and abuse could not be litigated without jeopardizing national security, even though the extraordinary rendition program was itself a matter of public record. El-Masri is appealing to the Supreme Court. Other cases challenging the government’s use of torture have also foundered. In the In re Iraq and Afghanistan Detainees Litigation, several victims sued former Defense Secretary Donald Rumsfeld and other high-ranking military officers for ordering, authorizing, or allowing policies that allegedly resulted in their torture in Iraq and Afghanistan. The district court described the allegations as “horrifying” but dismissed the lawsuit. Although the Constitution categorically prohibits torture, the court explained, the victims had no constitutional rights because they were foreign nationals detained outside the United States. In any event, the court found, providing a remedy would improperly interfere with wartime interrogations, even though the military’s own rules strictly prohibit the alleged conduct. THE ROLE OF JUDGES Like Arar and El-Masri, In re Iraq and Afghanistan Detainees Litigation denies a judicial forum to victims of the most egregious abuses by U.S. officials. These decisions rest on unfounded assumptions about courts, secrecy, and the role of judges. Leaving questions of torture in the area of national security to the executive and legislative branches poses significant problems. When the executive branch has disregarded the law, the judiciary must provide a remedy, particularly where the wrong is as fundamental as torture. Federal courts have a long, if imperfect, tradition of preserving basic rights during wartime. But more important, the administration’s so-called “Global War on Terror” is unlike any previous conflict. It has no clearly identifiable enemy, battlefield, or end. Will courts remain silent in a generations-long struggle in which civilians may be snatched off the streets or plucked from their homes, detained incommunicado, and tortured based upon suspicion or innuendo? The very nature of the “Global War on Terror” invites abuses of the worst kind, calling for judicial vigor, not acquiescence. History, moreover, cautions against excessive secrecy, which allows the government to cover up illegality and ineptitude in the name of national security. Take the state secrets doctrine, the basis for dismissal in El-Masri. The doctrine traces its modern formulation to United States v. Reynolds (1953), where the government invoked it to defend against a tort claim arising from the crash of an Air Force bomber during a test flight. The Supreme Court sustained the government’s refusal to disclose documents on the ground that disclosure would jeopardize military secrets. Yet the release of the documents four decades later revealed not sensitive security information, but evidence of government negligence. To be sure, courts must guard against disclosure of classified information that could jeopardize America’s safety. But the solution is not to accept uncritically executive claims of national security as a bar to suit. Rather, it is to craft procedures that allow cases to go forward by balancing concerns about sensitive information with the judiciary’s obligation to remedy misconduct as egregious as torture. COERCED CONFESSIONS Damage suits by torture victims are not the only test of the courts’ commitment against torture. Habeas corpus litigation raises important questions about the courts’ role in preventing the use of coerced evidence in the detention and trial of alleged enemy combatants. The Supreme Court ruled in Rasul v. Bush (2004) that Guant�namo detainees had the right to seek habeas relief. Much of what followed may be understood as part of a conscious effort by the Bush administration to preclude meaningful judicial review of evidence gained by torture and other coercion. Nine days after Rasul, the Bush administration created a summary military process, known as a Combatant Status Review Tribunal, to prevent district court habeas hearings. The CSRT relies upon secret evidence and multiple layers of hearsay while denying detainees a lawyer. Yet the CSRT does more than merely lack such key safeguards against the use of evidence gained by torture; it explicitly allows for the use of such evidence. Notably, detainees in 56 cases alleged that they had made statements under torture. The CSRT nonetheless found them all enemy combatants, without investigating a single claim of abuse. In 2005, U.S. District Court Judge Joyce Hens Green concluded that the CSRT violated due process. Among the other flaws, she said, was its failure to conduct “a thorough inquiry into the accuracy and reliability of statements alleged to have been obtained through torture.” But developments have eroded this ruling. Congress has since enacted two statutes — the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 — that seek to curtail the courts’ power to hear the habeas petitions of certain alien enemy combatants. In February 2007, the U.S. Court of Appeals for the D.C. Circuit in Boumediene v. Bush upheld the elimination of jurisdiction over the Guant�namo detainee habeas cases. The Supreme Court then refused to hear the detainees’ appeal. A separate statement by Justices John Paul Stevens and Anthony Kennedy on the certiorari denial explained that the detainees first needed to exhaust their available remedies in the D.C. Circuit under the review procedure created by the Detainee Treatment Act. This procedure, however, cannot meaningfully assess whether detainees are being held based upon evidence gained by torture because it limits judicial review to a CSRT record compiled without the hallmarks of due process and through reliance upon statements gained by torture and other coercion. As written, the Detainee Treatment Act does not allow the D.C. Circuit to consider new evidence, including evidence that a detainee’s confession was wrung by today’s equivalent of the rack and the screw. Crimped appellate review of a CSRT decision would effectively foreclose any meaningful assessment of whether the government is detaining people indefinitely — possibly for life — based on evidence gained through torture. UNRELIABLE EVIDENCE Similar problems plague the military commissions created to try the handful of detainees at Guant�namo who have actually been charged with a crime. Last June, the Supreme Court invalidated the previous military commissions, finding that they deviated from statutory requirements by relying on multiple hearsay and unsworn statements that permitted the use of coerced testimony. The new commissions established under the Military Commissions Act fail to fix this problem. As before, the commissions formally prohibit evidence gained by torture. But they allow multiple hearsay, shield interrogation techniques from scrutiny as classified “sources and methods,” and even permit evidence gained by cruel, inhuman, and degrading treatment. These shortcomings open the door to convictions based on evidence gained by torture. Yet the Supreme Court at the end of April declined to hear a challenge to the new commissions. Why should it matter how evidence against suspected terrorists was obtained? For one thing, evidence gained by torture is inherently unreliable, a point made by many counterterrorism experts. But apart from its unreliability, certain interrogation techniques are, in the Supreme Court’s words, “so offensive to a civilized system of justice that they must be condemned.” Imprisoning people based on evidence obtained through barbaric methods undermines America’s commitment to the very ideals it claims to be defending. Federal courts must not acquiesce when the government forsakes America’s ideals. Rather, they should ensure a forum where claims of torture are carefully examined and adjudicated. Meaningful review by judges not only vindicates the rights of the parties. It also upholds America’s commitment to its essential legal obligations, which cannot be entrusted to this or any other executive.
Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice at New York University’s School of Law. The Brennan Center represents several detainees in habeas corpus cases challenging the administration’s post-9/11 detention policies. It is also counsel for amici curiae in Arar v. Ashcroft and El-Masri v. Tenet .

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