The Example of America

President Obama should support providing legal remedies to those who were victims of torture. Such a stance would provide a measure of justice to the victims of torture and lend credence to President Obama's lofty rhetoric about the future. It would also bring to light constitutional abuses of the past eight years, and enable the public to confront and acknowledge the violations of the Constitution committed in their name. The President should support the judiciary in declaring -- in bold and clear terms -- that the constitutional ban on torture applies to American officials and their instrumentalities wherever they act and against whomever they act.

A special test of these principles is now pending before the Second Circuit. It involves Canadian citizen Maher Arar, who was taken into custody by U.S. officials at JFK airport in September 2002, and then transferred to Syria for interrogation under conditions of torture. At issue is the legality of the practice known as extraordinary rendition, the transportation of individuals suspected of terrorist activity to foreign countries for interrogation, sometimes torture.

After a panel of three judges refused to reach the merits of Arar's claim, twelve judges of the Second Circuit, sitting en banc, reheard the case. They are expected to rule soon. And they should stand up for our constitutional values by making the judgments that the panel before them was unwilling to make.

One reason that the three-judge panel avoided judgment was that Arar asked for monetary damages and a declaratory judgment that the law had been broken. On the first claim, the panel ruled that it did not have congressional authorization to give damages. Such a ruling seems odd in the extreme. It is not clear why Congress, a political body, must give the judiciary authorization before allowing damages for the violation of a constitutional right.

More importantly, even if the panel's unwillingness to award damages is sound, the declaratory judgment claim remains unaffected. A declaratory judgment simply declares what the law is. It requires no congressional authorization and does not penalize any past act. It is an exercise of the core judicial function. It enables the judiciary to remove any lingering uncertainty as to the legality of extraordinary rendition, and thus to restore the sovereignty of the Constitution.

Here, too, the Second Circuit three-judge panel hesitated and dismissed the declaratory judgment claim, this time on the theory that Arar lacked standing, the legal right of an individual to bring a lawsuit. To my mind, Arar suffered sufficient harm to meet the constitutional standing requirements. We all suffer when someone is tortured, because the basic law of the nation is compromised. But the victim of the rendition suffers in a distinct and very particularized way. His personal suffering constitutes an injury in fact and as such should entitle him to invoke the power of the federal judiciary. Arar has every incentive to make certain that the contentions of law and fact are vigorously presented. Moreover, the claim tendered -- that the government acted in violation of the Constitution -- respects the inherently legal function of the judiciary: to say what the law is.

The declaratory judgment does not contain the material component of a damages award, but much like a damages award, it speaks both to the world and to the victim. It says to the world that the government violated basic norms of the legal order -- the Fifth and Eighth Amendments, which prohibit, respectively, deprivations of rights without due process and cruel and unusual punishment. It also addresses the rendition victim and tells him, in a direct and personal way, that he has been wronged -- high American officials violated the basic law of their nation in sending him to Syria for interrogation under conditions of torture. Such a statement may have as much meaning to the victim and give him as much satisfaction as an award of damages. It helps restore his self-worth. It speaks to his soul, not his pocketbook, but there is nothing in the Constitution that prioritizes the material over the spiritual.

To read or listen to the lecture upon which this article is based, click here.

Comments

[menlopian]

Also known as fiscal stimulus for trial lawyers, which we all agree need more money in this difficult times.

[Pablo175]

KSM beheaded Daniel Pearl.

I think that we should be most concerned about KSM's feelings. I am sure that committing murder is very traumatic.

[KoolBreez]

To hell with KSM's feelings, we are talking about American constitution here..

[tracerhaha1]

Did we read the same story? Nowhere in there does it mention KSM. What we're talking about is grabbing someone and sending the to be tortured in another country and if an innocent person has al legal right to a redress of a grienvence.

[luziannagirl]

On the other hand, if waterboarding is NOT deemed to be torture, as asserted (or once asserted) by the previous administration, then perhaps restitution should be paid to the families of some of those Japanese officers executed for war crimes after WWII.

[Rumplestiltskin]

Oh, and you are a lawyer, right?

[whitehawk]

This young man was only 15 when detained. First thing U.S did wrong was; "Individual or forcible transfers, as well as deporting of protected persons (POW's) from occupied territory.....are prohibed, regardless of their motive".

Memo's of last administration; "Detainee will be sent off to Gitmo, either temporarily or permanently to Jordon, Egypt, or another third country to allow these countries to employ interrogation techniques that will enable them to obtain information".

March 13, 2003; Six memos written by military lawyers questioning the Department of Justice and WH legal analysis that supported coercive interrogation methods and unlimited Presidential Powers, mentioned and worried that most other countries will see the U.S. as corrupt and feel; "THAT THE U.S. IS A LAW UNTO ITSELF" ........and sure enough, the World feels the U.S., that administration was beyond corrupt and must be punished and tried in a court of law.

[DigDugDog]

I believe you're mixing Arar up with another Canadian, Omar Khadr.

[LeonBNJ]

Over 50 years after their incarcaration and rip-off of their property, the USA govenment gave Japanese- Americans who were interred during WW II under an act of Congress and the President a token compensation for that. In that situation, 1000's of innocents were put into detention camps but it took far too long to offer that compensation.
After 9/11, we set up a system of compensation to those around those killed, to those seriously injured and so on to assure some fairness as well as not overwhelm our court systems with many 1000's of lawsuits.
Clearly those really innocent of charges of terror should be compensated. The problem is how to seperate those on the borderlines of innocence and supportive of terror. It will take Solomon to figure this one out, but to create some compensation program may be the best way to deal with some vicitims of torture and rendition policies.

[AbrahamSadegh]

Sooner or later the present major issues we are dealing with - primarily the economy in all its manifestations and the wars in Iraq and Afghanistan - will be resolved but there are issues that will never be forgotten nor should be - our highest ideals and as a nation, the most important of which is "justice for all."

Those who undermined those ideals during the last administration, especially those who were trusted to uphold our constitution as public officials, should be prosecuted to the fullest extent of the law and those who suffered as the result should be compensated in the most judicious way possible.

As a nation, we should in the true “pursuit of happiness" be the guiding light for the rest of the world in every field of human endeavor.

One of Obama’s objectives as President should be to have the “Audacity” to win the Profile in Courage Award.

[RobHunt]

Extraordinary Rendition was a policy created and instituted by Bill Clinton. Should HE be prosecuted as well? Should such a person's WIFE be serving as Obama's Secretary of State? What kind of message does THAT send to the world?

[plebeianswillrevolt]

.... um, excuse me Mr. Contingent Fee Basis,....

I would first like to see the prosecution of the past Administration and maybe sometime later, naw never, should we be paying out taxpayer money to prove a point. The point will be proven when Cheney and Bush and Rice and Rummy fo to jail for treason. You feel sorry for the 2002 dude, give him some of your money.

[igotthis]

You are 100% right! Punishing unrepentant lawbreakers like Dick Cheney and other “high American officials” will definitely provide this country and the victims of torture with a moral and “spiritual” cleansing. Besides, President Obama, through his “lofty rhetoric” and the signing of an executive order, has already achieved what a “declaratory judgment claim” could not achieve: outlaw torture, end torture, declare torture as immoral, and expose the defenders of torture (like Dick Cheney) as morally bankrupted individuals.

[tonylinc]

OF COURSE what we "know" today is the tip of the iceberg. If you only knew all that really happened......

[MyNameIsJames]

I simply cannot believe that President Obama has this type of political courage. He is trying his best to whitewash the torture issue and move on..... He is so afraid that this will blow -up in his face that he prays to God every night to "let this cup" pass from him.

The cup being.... responsibility for correcting the grim era of torture in the name of the United States of America.

President Obama is a nice man-- he has a beautiful family. He is bright and articulate.... But I don't think he can handle a fight that involves accountability with the Bush torture regime. He's not that tough.

[tonylinc]

YES, and that's a shame for him, for our country, and for humanity. Allowing the Bush people to get away with war cruimes sets a horrible precedent that was in our country unthinkable, until the Bush-Cheney regime. It is really a shame, and America and the whole world loses.

[LeftLeanWing]

BS..

He has things he wants to accomplish and he doesn't want to get in the middle of THIS fray... This matter will take it's natural course through Congress and the Justice Department....

We have no idea what's going on behind the scenes...

[AnotherMcIntosh]

"We have no idea what's going on behind the scenes"

I believe you.

[JD44Irish]

It already has. The memos have been released establishing that Pelosi knew about "enhanced torture techniques." If knowledge without objection is acceptance - then she is culpable too and should resign and face the music like everyone else involved in this scandal.

[igotthis]

This is not an issue about whether or not President Obama is tough enough to press this issue. Oh, he’s tough enough. For the president, I believe, it is rather an issue about whether it is wise to investigate a former president for actions he deemed necessary doing a time of crisis. Indeed, an investigation of Cheney and his cronies regarding torture will probably lead to an investigation and a prosecution of President George W. Bush.

Now President Obama may yet see the wisdom of advocating an investigation, which is all he can do, since only the Attorney General can decide whether an investigation or prosecution is warranted. In fact, given all the evidence that is piling up and the open confessions of Dick Cheney, President Obama may overcome his reluctance to see a former president investigated for war crimes. I’m hoping he will.

[Ironquill]

Somehow the country needs to restore its moral and legal foundations regarding protections of rights through due process and protection against cruel and unusual punishment.

I'm just curious as to how the picture changes if and when it is revealed that a prisoner sent for extraordinary rendition died in the process.


It's pure hunch, but I suspect that deaths did occur and that many are hard at work building their defenses well before such knowledge becomes public. Cheny is obviously digging trenches well ahead of any new elections, and one wonders how worried he might actually be of even more damaging disclosures from the torture front.