The Noose Tightens
Rumsfeld, Ashcroft and other top Bush officials could soon face legal jeopardy.
Jonathan Tepperman
Newsweek Web Exclusive
The United States, like many countries, has a bad habit of committing wartime excesses and an even worse record of accounting for them afterward. But a remarkable string of recent events suggests that may finally be changing—and that top Bush administration officials could soon face legal jeopardy for prisoner abuse committed under their watch in the war on terror.
In early December, in a highly unusual move, a federal court in New York agreed to rehear a lawsuit against former Attorney General John Ashcroft brought by a Canadian citizen, Maher Arar. (Arar was a victim of the administration's extraordinary rendition program: he was seized by U.S. officials in 2002 while in transit through Kennedy Airport and deported to Syria, where he was tortured.) Then, on Dec. 15, the Supreme Court revived a lawsuit against Donald Rumsfeld by four Guantánamo detainees alleging abuse there—a reminder that the court, unlike the White House, will extend Constitutional protections to foreigners at Gitmo. Finally, in the same week the Senate Armed Service Committee, led by Carl Levin and John McCain, released a blistering report specifically blaming key administration figures for prisoner mistreatment and interrogation techniques that broke the law. The bipartisan report reads like a brief for the prosecution—calling, for example, Rumsfeld's behavior a "direct cause" of abuse. Analysts say it gives a green light to prosecutors, and supplies them with political cover and factual ammunition. Administration officials, with a few exceptions, deny wrongdoing. Vice President Dick Cheney says there was nothing improper with U.S. interrogation techniques—"we don't do torture," he repeated in an ABC interview on Dec. 15. The government blamed the worst abuses, such as those at Abu Ghraib, on a few bad apples.
High-level charges, if they come, would be a first in U.S. history. "Traditionally we've caught some poor bastard down low and not gone up the chain," says Burt Neuborne, a constitutional expert and Supreme Court lawyer at NYU. Prosecutions may well be forestalled if Bush issues a blanket pardon in his final days, as Neuborne and many other experts now expect. (Some see Cheney's recent defiant-sounding admission of his own role in approving waterboarding as an attempt to force Bush's hand.)
Constitutionally, Bush could pardon everyone involved in formulating and executing the administration's interrogation techniques without providing specifics or naming names. And the pardon could apply to himself. Such a step, however, would seem like an admission of guilt and thus be politically awkward. Even if Bush takes it, civil suits for monetary damages could still proceed; such cases, though hard to win, are proliferating. Yet most legal scholars argue that a civil suit would not the best approach here. Neuborne calls it an "excessively lawyer-centric" strategy and says judges are extremely reluctant to award damages in such cases. Conservative legal experts like David Rifkin (who served in the Reagan and first Bush administrations) argue that no accounting is necessary, since the worst interrogation techniques, like waterboarding, have already been abandoned and Obama is expected to make further changes.
(More here.)
Jonathan Tepperman
Newsweek Web Exclusive
The United States, like many countries, has a bad habit of committing wartime excesses and an even worse record of accounting for them afterward. But a remarkable string of recent events suggests that may finally be changing—and that top Bush administration officials could soon face legal jeopardy for prisoner abuse committed under their watch in the war on terror.
In early December, in a highly unusual move, a federal court in New York agreed to rehear a lawsuit against former Attorney General John Ashcroft brought by a Canadian citizen, Maher Arar. (Arar was a victim of the administration's extraordinary rendition program: he was seized by U.S. officials in 2002 while in transit through Kennedy Airport and deported to Syria, where he was tortured.) Then, on Dec. 15, the Supreme Court revived a lawsuit against Donald Rumsfeld by four Guantánamo detainees alleging abuse there—a reminder that the court, unlike the White House, will extend Constitutional protections to foreigners at Gitmo. Finally, in the same week the Senate Armed Service Committee, led by Carl Levin and John McCain, released a blistering report specifically blaming key administration figures for prisoner mistreatment and interrogation techniques that broke the law. The bipartisan report reads like a brief for the prosecution—calling, for example, Rumsfeld's behavior a "direct cause" of abuse. Analysts say it gives a green light to prosecutors, and supplies them with political cover and factual ammunition. Administration officials, with a few exceptions, deny wrongdoing. Vice President Dick Cheney says there was nothing improper with U.S. interrogation techniques—"we don't do torture," he repeated in an ABC interview on Dec. 15. The government blamed the worst abuses, such as those at Abu Ghraib, on a few bad apples.
High-level charges, if they come, would be a first in U.S. history. "Traditionally we've caught some poor bastard down low and not gone up the chain," says Burt Neuborne, a constitutional expert and Supreme Court lawyer at NYU. Prosecutions may well be forestalled if Bush issues a blanket pardon in his final days, as Neuborne and many other experts now expect. (Some see Cheney's recent defiant-sounding admission of his own role in approving waterboarding as an attempt to force Bush's hand.)
Constitutionally, Bush could pardon everyone involved in formulating and executing the administration's interrogation techniques without providing specifics or naming names. And the pardon could apply to himself. Such a step, however, would seem like an admission of guilt and thus be politically awkward. Even if Bush takes it, civil suits for monetary damages could still proceed; such cases, though hard to win, are proliferating. Yet most legal scholars argue that a civil suit would not the best approach here. Neuborne calls it an "excessively lawyer-centric" strategy and says judges are extremely reluctant to award damages in such cases. Conservative legal experts like David Rifkin (who served in the Reagan and first Bush administrations) argue that no accounting is necessary, since the worst interrogation techniques, like waterboarding, have already been abandoned and Obama is expected to make further changes.
(More here.)
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