Relitigating Torture

I have to admit I'm confused by this reader email posted by Ben Wittes on the recent Donald Rumsfeld torture civil cases, which he says " totally represents my own uncertainty" on the matter.

On the one hand, there are some pretty carefully-thought-out legal arguments as to why the lawsuits should be dismissed: Extension of Bivens is not favored, interference with military decision-making, etc. On the other hand, I can’t escape the feeling that this is one of those issues where there is a narrow chain of legal reasoning, each step of which is perfectly reasonable, leading you to a conclusion that seems completely untenable, namely that an American citizen who was detained arbitrarily, held incommunicado and without access to counsel for as long as 9 months, tortured, and then released without charges has no remedy. But I equally can’t escape the feeling that this is a case that is not about damages for a wronged individual but about exposing and relitigating the policies of the last administration–a feeling that is reinforced by the fact that based on the opinions it seems that the complaints in the two cases were largely identical in substantial portion.

It's clear that some of the people involved in the cases want to "relitigate the policies of the last administration," but there's nothing parochial about this. Republican presidential candidates have assembled rosters of legal and national security advisers who support torture, and without a court ruling determining that it's illegal to treat people in the manner alleged by the suits it's highly possible that a GOP win in 2012 could lead to the withdrawal of President Obama's executive order limiting U.S. personnel to the Army Field Manual on interrogations. There also wouldn't be any need to "religate" them if the Bush administration hadn't decided to get creative with the definition of torture in the first place. 

There's nothing mutually exclusive between the admirable goal of preventing torture from becoming U.S. policy, and the individual grievances of people who were arbitrarily detained and subject to abuse. Even if one opposes the policy views of the organizations backing these suits, one's personal dislike of those views should not inform one's opinion on whether or not American citizens tortured and detained by their own government should be entitled to recompense. The law doesn't proscribe an exact remedy for this, but I suspect that's because the Framers of the Constitution, in seeking to curtail the arbitrary power of government, could not have imagined that they were in any sense creating a legal loophole meant to be exploited by policymakers intent on abusing people just because they're suspected of crimes. Technically speaking, this might be an "extension" of Bivens, but it goes to the heart of the kind of government the United States was supposed to be.

The ideological and policy goals of organizations like the ACLU shouldn't really matter here. What we're talking about is whether or not Americans abused by their own government have a right to a remedy. Everything else is irrelevant.

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