No Comment — May 9, 2012, 2:34 pm

Yoo, Latif, and the Rise of Secret Justice

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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

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

Burn Pits

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.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2020

Trumpism After Trump

= Subscribers only.
Sign in here.
Subscribe here.

“My Gang Is Jesus”

= Subscribers only.
Sign in here.
Subscribe here.

The Cancer Chair

= Subscribers only.
Sign in here.
Subscribe here.

The Birds

= Subscribers only.
Sign in here.
Subscribe here.

The Skinning Tree

= Subscribers only.
Sign in here.
Subscribe here.

The Interpretation of Dreams

= Subscribers only.
Sign in here.
Subscribe here.

Dearest Lizzie

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Trumpism After Trump·

= Subscribers only.
Sign in here.
Subscribe here.

The city was not beautiful; no one made that claim for it. At the height of summer, people in suits, shellacked by the sun, moved like harassed insects to avoid the concentrated light. There was a civil war–like fracture in America—the president had said so—but little of it showed in the capital. Everyone was polite and smooth in their exchanges. The corridor between Dupont Circle and Georgetown was like the dream of Yugoslav planners: long blocks of uniform earth-toned buildings that made the classical edifices of the Hill seem the residue of ancestors straining for pedigree. Bunting, starched and perfectly ruffled in red-white-and-blue fans, hung everywhere—from air conditioners, from gutters, from statues of dead revolutionaries. Coming from Berlin, where the manual laborers are white, I felt as though I was entering the heart of a caste civilization. Untouchables in hard hats drilled into sidewalks, carried pylons, and ate lunch from metal boxes, while waiters in restaurants complimented old respectable bobbing heads on how well they were progressing with their rib eyes and iceberg wedges.

I had come to Washington to witness either the birth of an ideology or what may turn out to be the passing of a kidney stone through the Republican Party. There was a new movement afoot: National Conservatives, they called themselves, and they were gathering here, at the Ritz-Carlton, at 22nd Street and M. Disparate tribes had posted up for the potlatch: reformacons, blood-and-soilers, curious liberal nationalists, “Austrians,” repentant neocons, evangelical Christians, corporate raiders, cattle ranchers, Silicon Valley dissidents, Buckleyites, Straussians, Orthodox Jews, Catholics, Mormons, Tories, dark-web spiders, tradcons, Lone Conservatives, Fed-Socs, Young Republicans, Reaganites in amber. Most straddled more than one category.

Article
The Cancer Chair·

= Subscribers only.
Sign in here.
Subscribe here.

The second-worst thing about cancer chairs is that they are attached to televisions. Someone somewhere is always at war with silence. It’s impossible to read, so I answer email, or watch some cop drama on my computer, or, if it seems unavoidable, explore the lives of my nurses. A trip to Cozumel with old girlfriends, a costume party with political overtones, an advanced degree on the internet: they’re all the same, these lives, which is to say that the nurses tell me nothing, perhaps because amid the din and pain it’s impossible to say anything of substance, or perhaps because they know that nothing is precisely what we both expect. It’s the very currency of the place. Perhaps they are being excruciatingly candid.

There is a cancer camaraderie I’ve never felt. That I find inimical, in fact. Along with the official optimism that percolates out of pamphlets, the milestone celebrations that seem aimed at children, the lemonade people squeeze out of their tumors. My stoniness has not always served me well. Among the cancer staff, there is special affection for the jocular sufferer, the one who makes light of lousy bowel movements and extols the spiritual tonic of neuropathy. And why not? Spend your waking life in hell, and you too might cherish the soul who’d learned to praise the flames. I can’t do it. I’m not chipper by nature, and just hearing the word cancer makes me feel like I’m wearing a welder’s mask.

Article
“My Gang Is Jesus”·

= Subscribers only.
Sign in here.
Subscribe here.

When Demétrio Martins was ready to preach, he pushed a joystick that angled the seat of his wheelchair forward, slowly lifting him to a standing position. Restraints held his body upright. His atrophied right arm lay on an armrest, and with his left hand, he put a microphone to his lips. “Proverbs, chapter fourteen, verse twelve,” he said. “ ‘There is a way which seems right to a man, but its end is . . .’ ”

The congregation finished: “ ‘Death.’ ”

The Assembly of God True Grapevine was little more than a fluorescent-lit room wedged between a bar and an empty lot in Jacaré, a poor neighborhood on Rio de Janeiro’s north side. A few dozen people sat in the rows of plastic lawn chairs that served as pews, while shuddering wall fans circulated hot air. The congregation was largely female; of the few men in attendance, most wore collared shirts and old leather shoes. Now and then, Martins veered from Portuguese into celestial tongues. People rose from their seats, thrust their hands into the air, and shouted, “Hallelujah!”

Article
The Birds·

= Subscribers only.
Sign in here.
Subscribe here.

On December 7, 2016, a drone departed from an Amazon warehouse in the United Kingdom, ascended to an altitude of four hundred feet, and flew to a nearby farm. There it glided down to the front lawn and released from its clutches a small box containing an Amazon streaming device and a bag of popcorn. This was the first successful flight of Prime Air, Amazon’s drone delivery program. If instituted as a regular service, it would slash the costs of “last-mile delivery,” the shortest and most expensive leg of a package’s journey from warehouse to doorstep. Drones don’t get into fender benders, don’t hit rush-hour traffic, and don’t need humans to accompany them, all of which, Amazon says, could enable it to offer thirty-minute delivery for up to 90 percent of domestic shipments while also reducing carbon emissions. After years of testing, Amazon wrote to the Federal Aviation Administration last summer to ask for permission to conduct limited commercial deliveries with its drones, attaching this diagram to show how the system would work. (Amazon insisted that we note that the diagram is not to scale.) Amazon is not the only company working toward such an automated future—­UPS, FedEx, Uber, and Google’s parent company, Alphabet, have similar programs—­but its plans offer the most detailed vision of what seems to be an impending reality, one in which parce­l-toting drones are a constant presence in the sky, doing much more than just delivering popcorn.

Article
The Skinning Tree·

= Subscribers only.
Sign in here.
Subscribe here.

Every year in Lusk, Wyoming, during the second week of July, locals gather to reenact a day in 1849 when members of a nearby band of Sioux are said to have skinned a white man alive. None of the actors are Native American. The white participants dress up like Indians and redden their skin with body paint made from iron ore.

The town prepares all year, and the performance, The Legend of Rawhide, has a cast and crew of hundreds, almost all local volunteers, including elementary school children. There are six generations of Rawhide actors in one family; three or four generations seems to be the average. The show is performed twice, on Friday and Saturday night.

The plot is based on an event that, as local legend has it, occurred fifteen miles south of Lusk, in Rawhide Buttes. It goes like this: Clyde Pickett is traveling with a wagon train to California. He tells the other Pioneers: “The only good Injun’s a dead Injun.” Clyde loves Kate Farley, and to impress her, he shoots the first Indian he sees, who happens to be an Indian Princess. The Indians approach the Pioneers and ask that the murderer give himself up. Clyde won’t admit he did it. The Indians attack the wagon train and, eventually, Clyde surrenders. The Indians tie Clyde to the Skinning Tree and flay him alive. Later, Kate retrieves her dead lover’s body and the wagon train continues west.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

In response to a major volcanic eruption, President Rodrigo Duterte of the Philippines vowed he would “eat that ashfall. I’m even going to pee on Taal, that goddamned volcano.”

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Jesus Plus Nothing

= Subscribers only.
Sign in here.
Subscribe here.

By

At Ivanwald, men learn to be leaders by loving their leaders. “They’re so busy loving us,” a brother once explained to me, “but who’s loving them?” We were. The brothers each paid $400 per month for room and board, but we were also the caretakers of The Cedars, cleaning its gutters, mowing its lawns, whacking weeds and blowing leaves and sanding. And we were called to serve on Tuesday mornings, when The Cedars hosted a regular prayer breakfast typically presided over by Ed Meese, the former attorney general. Each week the breakfast brought together a rotating group of ambassadors, businessmen, and American politicians. Three of Ivanwald’s brothers also attended, wearing crisp shirts starched just for the occasion; one would sit at the table while the other two poured coffee. 

Subscribe Today