Sunday, August 14, 2011

Fighting the American Government's Torture of American Citizens

In the past 11 years, so-called executive power has undermined citizenship, humanity and the rule of law. American Presidents, led by Bush (and Cheney), have tortured non-citizens and citizens alike. A federal court has just ruled that two contractors, who reported government abuse and were detained and tortured at length (one for three months, the other for six weeks), have the right to sue Pentagon Secretary Donald Rumsfeld. This is a small blow struck for the Bill of Rights and against governmental depravity (tyranny). The New York Times’s commendable editorial “Holding Rumsfeld Accountable” below, underlines some of the stakes in this issue.

The emergence of a modern or decent regime, in England, in 1215 in the Magna Carta and several further centuries of struggle from below, came from habeas corpus, the recognition that governments are of great power, often tyrannical - violating in a systemic or patterned way a common good for citizens - and that the job of a judicial system is to protect the rights of each individual. These rights include the right not to be tortured when imprisoned and the right to a relatively speedy day in court to assess the charges. The Bush-Cheney administration threw away the law for Americans (as the teacher of constitutional law, Barack Obama, did in torturing Bradley Manning, in furthering the system of governmental spying on Americans and in reinforcing a doctrine of "state secrets" which prevents Maher Arar, a Canadian engineer of Syrian origin, from suing for redress in American courts for the known Bush administration crime of taking him off an airplane at a connecting flight in Laguardia and rendering him to Syria where he was confined in a coffin-sized cell and tortured for 10 months, before the Syrian government returned him to Canada). This court, and on this issue, the Times, commendably fight for the resurrection of habeas corpus.

In modern democratic theory, for example, in John Rawls (and in many others, including my Democratic Individuality and Must Global Politics Constrain Democracy?), a decent democracy or system of majority rule rests as a precondition on preserving the equal basic rights of each citizen (the first of Rawls’ two principles, the one which has priority and rules out any difference of wealth or economic inequality that might corrupt the government and undermine equal rights). The notion that rights are always equal rights rules out foolish libertarian conceptions that rights are somehow held by nonexistent, asocial individuals and hence, the so-called freedom or right of one can extinguish the rights and often the lives of others (this is a standard view purportedly justifying capitalism poisoning the environment, “corporate personhood,” the rich dominating the government at the expense of everyone else – so-called minimal government, except for war and “intelligence” i.e. the militarism of an, in fact, gigantic government - and the like). *

The doctrine advocated in the “defense” of Rumsfeld and other Bush high officials – that in a state of emergency (and thus, any war, even an American aggression), the sovereign can do whatever it wants, and citizens have no complaint against torture or murder – is odious. It is the doctrine of Carl Schmitt (the Nazi jurist) and Leo Strauss. See here, here and here. In a serious court system, one in a free regime, such a “doctrine” would be exposed to ridicule and laughter. As this court recognized, Secretary Rumsfeld “acted with deliberate indifference by not ensuring that the detainees were treated in a humane manner despite his knowledge of widespread detainee mistreatment.” What courts are, in democratic theory, is the defender of the equal basic rights of citizens (Ronald Dworkin says this in a number of places, notably in his early, friendly criticism of Rawls that the core notion upheld by equal rights is of mutual respect among persons of different “comprehensive” or conscientious views). This coherent and decent theory contrasts with speculative “originalism” (the view that the law must decipher and uphold the original intent of the founders, for instance, in the “compromise” that slaves counted as three-fifths of a man to increase suffrage for their masters…).

It is often the case as in Socrates, Thoreau, King and many other civil disobedients (violent resisters, too, like the American revolutionaries and John Brown) that such rights have to be fought for and vindicated from below. Part of that fight is their continued statement and restatement. We should all be grateful for the Times, standing up for the decency of the regime against this, quite possibly mortal threat to it.

Holding Rumsfeld Accountable
Published: August 13, 2011

In a courageous decision last week, a federal appellate court ruled that two Americans who say they were tortured by American military forces in Iraq in 2006 can sue former Secretary of Defense Donald Rumsfeld and others for violating their constitutional rights.

The case involves Donald Vance and Nathan Ertel, who went to Iraq to work for an American security firm and became whistleblowers when Mr. Vance grew suspicious that the company was involved in illegal activity, including weapons trafficking. They were detained by the military for three months and six weeks, respectively.

The opinion by Judge David Hamilton of the United States Court of Appeals for the Seventh Circuit recounted their “well-pled allegations” that while in custody they were “physically threatened, abused, and assaulted by the anonymous U.S. officials working as guards.” The government eventually released them, without explanation or charging them with any crime.

The case is important because it makes clear — for the first time — that government officials can be held accountable for the intentional mistreatment of American citizens, even if that conduct happens in a war zone. (Sadly, there remains no accountability for the abuse, and torture, of foreigners by American jailers and interrogators, which Mr. Rumsfeld and President George W. Bush personally sanctioned.)

In allowing the suit to go forward, the court said the plaintiffs had alleged facts showing “that it is plausible, and not merely speculative, that Secretary Rumsfeld was personally responsible for creating the policies that caused the alleged unconstitutional torture,” and that he “acted with deliberate indifference by not ensuring that the detainees were treated in a humane manner despite his knowledge of widespread detainee mistreatment.”

The court rejected what it called the “unprecedented breadth” of the argument put forward by Mr. Rumsfeld and other defendants — that no government or military employee could ever be sued by American civilians for torture or even murder in a war zone. The court made plain that the wrongdoing alleged “violates the most basic terms of the constitutional compact between our government and the citizens of this country.”

Judge Hamilton said further that granting Mr. Rumsfeld and others immunity from lawsuits “would amount to an extraordinary abdication of our government’s checks and balances that preserve Americans’ liberty.”

The ruling relies on the landmark Bivens case, which allows citizens to sue officials for damages for violating their constitutional rights and is a powerful, though limited, remedy against government wrongdoing. This decision gives Mr. Vance and Mr. Ertel a chance to prove their case and vindicate their rights.

*A coherent “libertarian” view is the first principle in Rawls. An incoherent libertarian view, for instance Robert Nozick’s often very clever Anarchy, State and Utopia, starts and stays with a purported isolated individual in the state of the nature. Such a view never rises to the account of a free political regime (one in which basic rights are equal, the rights of each citizen).

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