‘Terror’ and Everybody’s Rights
In the NY Review of Books Jed Rakoff reviews an important book by Owen Fiss:
A War Like No Other: The Constitution in a Time of Terror
by Owen Fiss, edited and with a foreword by Trevor Sutton<
New Press, 330 pp., $27.95
Say the word “war” and the rule of law often implodes, with courts frequently employing sophistry to avoid any interference with governmental conduct. To take an obvious example, during World War II the Roosevelt administration interned thousands of American citizens of Japanese descent solely on the basis of their ancestry, and the Supreme Court, in an opinion by Justice Hugo Black, upheld this patently unconstitutional confinement by simply repeating the mantra that, in time of war, total deference (unchecked and unbalanced) is due the military.
During the same war, the US troops fighting Nazi racism were, without judicial interference, segregated by color. Even the 1940 draft law, which stated that “in the selection and training of men under this Act,…there shall be no discrimination against any person on account of race or color,” was held by the Second Circuit Court of Appeals not to prohibit separate draft quotas for whites and blacks, since “the Army executives are to decide the Army’s needs.”
The so-called “war on terror” declared by President George W. Bush soon after September 11, 2001, has already lasted more than three times as long as American involvement in World War II, with no end in sight. By its shapeless and secretive nature, it tends to generate amorphous fears and shrouded responses that compromise our freedoms in ways we may only dimly recognize but that create troubling precedents for the future. And so far, the federal courts have done precious little to challenge these incursions.
One of the voices decrying this judicial failure is that of Owen Fiss, a very distinguished Yale law professor, who over the past dozen years has written one essay after another analyzing, or one might say exposing, the shallowness of the judicial response to executive excesses committed in the name of national security. That Fiss would undertake this task was by no means inevitable. Now in his late seventies, he had focused much of his academic career (which had made him one of the most-cited legal scholars in the country) on such subjects as civil procedure, freedom of speech, and equal protection of the law. But his palpable disagreement with the way federal courts were, in the name of an uncertain and shifting war, largely avoiding judicial scrutiny of everything from manifest torture to far-reaching surveillance led him, beginning in 2003, to write the ten essays now collected by his former student Trevor Sutton in A War Like No Other.
A few of the most prominent examples that Fiss discusses will illustrate his concern. First, there is the CIA’s use of torture following September 11. One may assume for the sake of argument that torture may sometimes be effective in extracting information that cannot be obtained by ordinary interrogation—although most studies suggest that its main effect is to force the victim to tell his torturer what he believes the torturer wants to hear. Indeed, historically, one of torture’s most prominent uses has been to coerce false confessions, as in the “show trials” of the Stalinist period.
In any case, torture, regardless of any perceived benefits, has been condemned from the earliest days of the American republic. Most scholars agree that it was revulsion at the English kings’ use of torture that led to enactment of the Fifth Amendment’s prohibition against compelled self-incrimination and also played a part in the enactment of the Eighth Amendment’s prohibition of cruel and unusual punishment. Evidence of Americans’ continuing abhorrence of torture can also be found in numerous current statutes: for example, torturing a victim before murdering him is one of the “aggravating factors” that, under current federal law, warrants the death penalty.
Most directly applicable, in 1988 the United States signed and in 1994 ratified the United Nations Convention Against Torture, which thereby became a binding part of our law. Article 1 of the convention defines torture to encompass, among other things, “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.” Article 2 requires each signatory state to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” (emphasis added). Article 2 also provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture.”
Although the language in Article 2 italicized above might seem to permit a government agent operating abroad to make use of torture, in 1994, Congress, as part of the legislation implementing the convention, enacted section 2340A of the Federal Criminal Code, which, among other things, prohibits any US agent operating even “outside the United States” from inflicting torture on any person within his custody or physical control. Yet following September 11, CIA agents working abroad subjected suspected terrorists to waterboarding—a technique derived from the Spanish Inquisition in which water is forced into the nose and mouth of the subject so as to induce the perception of suffocating or drowning.
Waterboarding would thus clearly appear to be torture. Nonetheless, legal memoranda prepared by senior Justice Department officials shortly after September 11 purported to justify its use by arguing that the convention’s definition of torture covered only “the worst forms of cruel, inhuman, or degrading treatment or punishment,” and that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” As for mental suffering, it must, according to the memoranda, be of a kind that leads to psychological harm lasting “for months or even years” to constitute torture.
Since, however, it is up to the judiciary to make the final determination of what a law means, one might have imagined that once the CIA’s waterboarding was made public, a court would then have decided whether or not it constituted torture under section 2340A. But this did not occur, in part because the government also took the position that the CIA’s waterboarding, as an instrument in the war on terror, was exempt from judicial review.
After some uncertainty, this exemption from judicial review of any decision to waterboard became the Bush administration’s position at the highest levels and was effectively reiterated in 2005, after Congress passed the Detainee Treatment Act, which, among other things, provided that “no person in the custody or under the effective control of the Department of Defense” shall be subjected to certain specified “technique[s] of interrogation” that included waterboarding. In addition to maintaining that the legislation did not apply to the CIA, President Bush, in signing the bill, asserted his power to interpret it “consistent with the constitutional limitations on judicial power”—a clear suggestion that his interpretations were exempt from judicial review. In effect he was saying, “if we decide to waterboard, no court can say us nay.”
As it happened, this supposed exemption was never put to the test as far as CIAwaterboarding was concerned. Rather, the issue was resolved politically. Specifically, President Obama, soon after taking office in 2009, banned the use of waterboarding even by the CIA, and Congress effectively codified this order in 2015. (Donald Trump has however announced his support for waterboarding.) Despite rumors, moreover, there have been no verified reports of CIA waterboarding since 2003. So at the moment, at least, there is nothing for a court to decide when it comes to waterboarding by US agents.
Regretfully, however, President Obama’s ban on waterboarding did not put an end to US involvement in the use of torture as part of the war on terror. Instead, within the past decade the US has repeatedly made use of the device known as extraordinary rendition, by which suspected terrorists detained by the US are turned over to police authorities in other countries that regularly employ torture as an interrogation technique.
Fiss, who views this practice, along with waterboarding, as “one of the most egregious of all abuses associated with the War on Terror,” gives as an example the case of Maher Arar, a dual citizen of Canada and Syria, who was thought by US authorities to be a supporter of al-Qaeda. While returning to Canada from a vacation in Tunisia, Arar had to change planes at JFK in New York. He was immediately taken into custody by US agents, who held him for twelve days and then, after their interrogation apparently did not lead to the desired results, shipped him to Syria, where (he alleges) they knew he would be tortured—as he was.
The Second Circuit Court of Appeals, in a full court decision filed in late 2009, held, by a vote of 7–4, that these facts did not constitute a legitimate legal claim. Similarly, in a case involving five former detainees who alleged that the CIA arranged for them to be flown to other countries so that they could be interrogated by torture, the Ninth Circuit Court of Appeals held in 2010, by a vote of 6–5, that the detainees’ lawsuit was barred by prohibitions against exposing state secrets.
Although the split votes in these cases suggest that judicial opinion is not uniform about whether extraordinary rendition is beyond judicial scrutiny, for the time being it remains a device by which US officials can effectively use the torture techniques of other countries to interrogate those suspected of aiding the war on terror. The majority view of the judiciary is not to interfere.
If the judiciary’s response to extraordinary rendition is an example of its hands-off approach to dubious practices associated with the war on terror, a different kind of judicial response, which might be described as “words without deeds,” is presented by another of Fiss’s examples, namely, detention without trial of persons alleged to be enemy combatants. . .
Continue reading. There’s more.