Last week, a federal judge dismissed convicted terrorist Jose Padilla's lawsuit against former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft, and former Deputy Defense Secretary Paul Wolfowitz on qualified immunity grounds. I think Glenn Greenwald gets at the most important part of this -- that to this day, not a single victim of Bush-era interrogation policies has gotten a day in court.
There are legalistic questions involved in cases such as the one brought by Padilla -- i.e., whether courts should allow monetary damages to be sought against government officials for Constitutional violations in the absence of a Congressional statute (a "Bivens" claim) and whether such officials should enjoy "qualified immunity" for their illegal acts where the illegality is unclear (as Rumsfeld absurdly alleged the torture of Padilla was) -- but one key fact is not complex. Not a single War on Terror detainee has been accorded any redress in American courts for the severe abuses to which they were subjected (including innocent people being detained for years, rendered and even tortured), and worse, no detainee has been allowed by courts even to have their claims heard. After the U.S. Government implemented a worldwide regime of torture, lawless detention, and other abuses, the doors of the American justice system have been slammed shut in the face of any and all victims seeking to have their rights vindicated or even their claims heard. If an American citizen can't even sue political officials who lawlessly imprison and torture him in his own country -- if political leaders are vested with immunity from a claim of this type -- what rational person can argue that the rule of law or the Constitution binds our government officials?
This isn't about partisan vengeance. It's about the fact that a system of accountability for government officials who break the rule in the name of national security does not truly exist. Bush-era political officials have been shielded from criminal investigations by the current administration, which has chosen to "look forward," while attempts at civil redress have been struck down by judges one after another. Even within the intelligence community, even those officials who went beyond the paramaters set by the Bush Justice Department or who made decisions that led to innocents being tortured or the deaths of detainees have merely moved up the bureaucratic chain. We're even paying the legal bills of the outside contractors who patterned the "enhanced interrogation program" after torture techniques used by China during the Korean War to elicit false confessions from captures.
Accountability is a deterrent. There has been no accountability for torture whatsoever, and as a result, we can expect it to return as a feature of American national-security policy. The Bush administration's Justice Department may have legal sanction for the use of torturous interrogation techniques, but it is the Obama administration that has essentially "legalized" it by helping to ensure that no one would pay a price.
