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One of the lasting challenges to America’s federal judiciary will be addressing American complicity in the tortures and disappearances of the past ten years. Two recent appeals-court decisions show us how judicial panels are tackling these issues: by shielding federal officials and their contractors from liability, and even by glorifying the fruits of their dark arts. In the process, legal prohibitions on torture are being destroyed through secrecy and legal sleight of hand, and our justice system is being distorted and undermined.
Last week, the Ninth Circuit reversed a district-court decision allowing a suit against torture-memo author John Yoo to go forward. The suit had been brought on behalf of José Padilla by his mother, who argued that Padilla was tortured while in U.S. custody as a result of Yoo’s advice—a claim that seems pretty much unassailable, and that had to be accepted as true for purposes of the preliminary rulings. In a decision that has left international-law scholars dumbstruck, the Ninth Circuit granted Yoo immunity, concluding that the law surrounding torture was so muddled when he dispensed his advice that he should be given the benefit of the doubt. The best authority the judges could muster for this outlandish perspective was a European Court of Human Rights decision from 1978, which found that a series of grim techniques used by Britain against Irish internees was not torture—rather it was “cruel, inhuman and degrading treatment.”
Hovering in the background of the Ninth Circuit’s opinion is a troubling fact: John Yoo had a co-author when he crafted his torture memoranda, Jay Bybee. And Bybee is now a judge on the Ninth Circuit. Had the court handed down any other ruling, it would have been exposing one of its own. The court’s twisted reasoning and distortions of legal precedent otherwise make very little sense. Indeed, the Ninth Circuit judges seemed to be uncomfortable with torture, issuing an opinion that was comparable to a surgical excision: do what is essential to shelter Yoo and Bybee, and not an iota more.
The D.C. Circuit, conversely, has developed a real hankering for torture. Exhibit A in its judicial immorality tale is the astonishing 2–1 decision handed down in October in the Latif case, in which two movement-conservative judges overruled a district court that had concluded that Latif—a thirty-six-year-old Yemeni who has spent the past ten years of his life in prison in Guantánamo without being charged and with only vague suspicions connecting him to terrorist groups—should be released because the record did not contain sufficient evidence to warrant a life sentence in the absence of charges. Judge Janice Rogers Brown, a George W. Bush appointee, wrote that the usual presumptions had to be reversed in cases involving Guantánamo detainees: the government’s secret conclusions had to be presumed correct unless they were contradicted by compelling evidence to the contrary. In Brown’s perspective, the analytical report on Latif prepared by CIA officers—who were under immense pressure to justify detentions even when the evidence plainly indicated very little to no basis for them, as Glenn Carle and other CIA case officers have openly acknowledged—was entitled to a “presumption of regularity.” Because key parts of this report were classified, it was not entirely accessible by the petitioner, denying him the ability to effectively rebut it.
Brown’s opinion, as well as many critical documents in the case, were heavily censored, which made it challenging for observers to know and understand the basis for her ruling. But a further edition of the decision was released on April 27, providing ammunition for its critics. Brown’s opinion is filled with what the New York Times today calls “misstatements about rules of evidence” and an “inexcusable disregard for critical facts.” These misstatements are not the result of sloppiness. They are quite conscious; in fact they are critical to the result. Brown believes the trial court should have accepted the CIA’s analysis unless convincing evidence existed to contradict it. But in the trial judge’s opinion, such evidence existed: Latif’s testimony better matched medical and other records than the CIA’s analysis.
In a dazzling display of judicial hubris, two movement-conservative judges had decided to substitute their judgment for that of the trial court. This was not their proper role; neither was it their role to effectively gut the Supreme Court’s decision, in Boumediene v. Bush, to grant habeas corpus review to Guantánamo prisoners—a ruling the Latif decision appears to reduce to a sham. In public settings, several of the D.C. Circuit judges have been openly critical of the Supreme Court’s habeas ruling. They have also publicly defended the Bush Administration’s terrorism-fighting policies—suggesting the motivation for their poorly reasoned opinion in Latif.
Such decisions mark the ascendance of a “justice of secrecy” in American courts. This flavor of justice aims to use American courts and legal processes to validate torture and other abusive practices, to validate the supposed benefits America has received from these practices, and to shield political actors and their helpers. The justice of secrecy also applies a presumption of truth to classified information and frustrates efforts to challenge it.
To see where this sort of substantive justice leads, it is instructive to look at modern authoritarian and totalitarian societies. For example, following a series of terrorist bombings in Moscow on January 8, 1977, the KGB orchestrated a dissident-harassment campaign widely suspected at the time to have been designed as a provocation. Years later, after the collapse of the Soviet Union, Russian president Boris Yeltsin granted a request by human rights activist Elena Bonner to release KGB archival files that included documents related to the January 8 bombings. The files revealed that KGB agents had been ordered to round up known dissidents and build cases against them. The political pressure to assemble evidence implicating the targets was immense, and the usual intelligence-service techniques were applied to that end. In the end, the investigations led to charges against three Armenian activists. Details of these charges were withheld from the public until January 31, 1979, when it was announced that the Armenians had been tried, convicted, and executed for the terrorist bombings.
The proceedings had been justified from the outset by national-security concerns related to a terrorist campaign, and the intelligence service had been given free rein, its methods shielded from public view all the way through to the secret trials. Andrei Sakharov spoke out against the process from the beginning. “Secret justice,” he said, “is no justice at all.” In his mind, the episode showed the Soviet Union’s lax commitment to justice, evident in the role of prejudgment in intelligence-service investigations, the unreliability of conventional intelligence-service techniques, and the absence of fair trials. In his view, the criminal-justice system’s deference to the intelligence service’s demands for secrecy was unwarranted; it stripped the system of legitimacy, converting a legal process into a nakedly political one. In taking on the KGB, Sakharov earned its enmity, and he was soon subjected to a campaign of vilification. But history has proven the truth of his accusations.
Sakharov’s observations apply just as fairly to the efforts of the CIA and American prosecutors and courts to introduce secret justice in America. The type of secrecy that lies at the heart of Latif cannot be reconciled with justice—it is political by nature, and it is motivated by a sense of political vulnerability. Courts embrace such secrecy at the risk of forfeiting their claims to impartiality and fairness, and of harming America’s institutions and reputation.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Minutes after a tornado hit Shiloh, Illinois, in April that the town’s warning siren sounded:
A bowl of 4,000-year-old noodles was found in northwestern China; and a spokesman for the Chinese Academy of Sciences said that “this is the earliest empirical evidence of noodles ever found.”
Rodrigo Duterte, the president of the Philippines, announced that he has ordered the country’s navy and coast guard to bomb the ships of kidnappers even if civilian hostages are on board.
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."