A War Like No Other (24 page)

Torture is not self-defining, and for that reason disagreement will inevitably arise as to whether a particular interrogation technique constitutes torture. The abuse of the Constitution implicit in the Defense and Justice memoranda that I just described did not arise from the very understandable need to provide guidelines for interrogators but from the content of those guidelines and a desire to allow aggressive—indeed coercive—treatment of prisoners, without any regard for their dignity. Although our knowledge of the actual practices employed by government interrogators during the Bush years remains fragmentary, in no small part due to the administration’s own actions,
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the available evidence indicates that they fully understood the message being conveyed—almost everything was on the table.
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In the case of the CIA—which was not covered by the Army Field Manual or even Rumsfeld’s guidelines for Guantánamo but only by the Yoo-Bybee memorandum—the offense to the Constitution entailed in the practices allowed by these memoranda was especially blatant. According to a December 2007 television interview with a CIA agent, the CIA used waterboarding against a high-level al-Qaeda operative, and did so under circumstances that made it clear that this was not the unruly action of agents under stress.
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The CIA interrogators in the field were in constant and immediate communication with the deputy director for operations in Washington, who determined whether so-called enhanced interrogation techniques were to be used, against whom, and with what degree of intensity. No wonder Michael Mukasey refused, in his confirmation hearings to be attorney general, which occurred shortly before the December 2007 television interview, to say whether waterboarding was torture.
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Had he done so, he might have
politically committed himself to prosecuting some CIA agents and their supervisors.

The Bush administration not only sought to avoid the force of the prohibition of torture by manipulating the definition of the practices covered, it denied that the president is bound, as a matter of law, by that prohibition, and in doing so harked back to a conception of presidential power long identified with the Nixon White House. In the late 1970s, President Richard Nixon, in an effort to defend the action that led to his impeachment and eventual resignation, publicly maintained that the president is entitled to disobey the law whenever he determines it is for the good of the nation. If the president does an act, he said, it is not illegal. History judged this view harshly, but it was taken as an article of faith in certain circles, which included Vice President Dick Cheney, and it became an organizing theme of the Bush presidency—most remarkably even in the debates over torture.

This conception of almost unlimited presidential power was defended by the Department of Justice and its Office of Legal Counsel. The 2002 Yoo-Bybee memorandum mentioned above not only offered a contrived definition of torture, it put into question whether the president, acting as commander in chief, was bound by that prohibition. In making this claim, Yoo and Bybee treated the rule against torture as nothing more than a congressional command.

Yoo and Bybee have a skewed conception of presidential power. Although the president, as commander in chief, might be deemed to have whatever authority is needed to prosecute a war successfully, account must also be taken of the constitutional grant of authority to Congress over military matters. The constitutional vision is one of shared powers. Article I grants Congress the power to define and punish “[o]ffenses against the Law of Nations,” “[t]o make Rules concerning Captures on Land and Water,” and “[t]o make Rules for the Government and
Regulation of the land and naval Forces.” The making of such rules would surely include the power to determine how individuals who are detained by the military should be treated or interrogated. Of course, conflicts between those who share power may sometimes arise. The error of Yoo and Bybee, however, was to assume that in the case of such conflicts the president as commander in chief should prevail over Congress. They gave no reason for that view, nor is one readily apparent.

The inadequacy of Yoo and Bybee’s view of presidential power is even more apparent once we acknowledge that the prohibition of torture is not based only on a statute but also is rooted in the Fifth and Eighth Amendments, for all exercises of the powers of the president, like those of any branch of government, must comply with the Bill of Rights. This basic proposition of constitutional law is implicit in the very institution of judicial review, which empowers the judiciary to set aside measures of the president or Congress that might be within their enumerated powers but are inconsistent with the Bill of Rights.

The understanding of presidential power propounded by Yoo and Bybee in 2002 even survived the repudiation of their contrived definition of torture. In December 2004, in the wake of the public outcry surrounding the leak of the original Yoo-Bybee memorandum, the Department of Justice issued another memorandum on torture.
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This new memorandum explicitly repudiated Yoo and Bybee’s definition of torture, stating that all that is required to constitute torture is severe or extreme pain; however, it did not withdraw or in any way modify the Yoo-Bybee view of presidential power. The new memorandum said it was unnecessary to address the issue of presidential power because the president had publicly declared, as a matter of policy, his opposition to torture.

In fact, President Bush’s actions regarding the Detainee Treatment Act of 2005 put his stated opposition to torture very
much into question.
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He fiercely resisted the enactment of the provision, spearheaded by Senator John McCain, that codified the constitutional ban on torture. Upon signing the act into law, the president explained that he was signing the measure with the understanding that the statute did not create or confer a private right of action on victims of torture.
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He also said that he intended to construe the statute in a way that was consistent with his constitutional powers as commander in chief and his duty to protect the nation against future terrorist attacks. The legal effect of this so-called signing statement was unclear, but its political implications were not. It was widely understood to indicate that President Bush did not believe himself bound by the measure and that, if military necessity dictated, he would allow prisoners to be tortured as part of an interrogation process.

Rendition to Torture

In keeping with its expansive view of executive power, the Bush administration further offended the Constitution by engaging in a practice—known as extraordinary rendition—that involved torture, though by foreign nations. Rendition occurs when the United States, acting pursuant to an extradition treaty, sends an individual to another country to stand trial for some particular crime. Rendition becomes “extraordinary” when transfer occurs outside of the framework of an extradition treaty and when the purpose of the transfer is not to enable the country to which the individual is transferred to place the individual on trial but rather to interrogate him and extract information of use to the United States. The predicate of such a transfer is that the nation receiving the prisoner will use aggressive and brutal interrogation techniques—torture—that United States agents are not prepared to use. Although this practice antedates the Bush administration and its War on Terror, it was used with notable
frequency in the Bush years—there are some indications that it was used hundreds of times during this period.
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The fact that extraordinary rendition entails “outsourcing” torture, to use Jane Mayer’s term,
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is of no legal or moral significance. If the Constitution prohibits United States officials from engaging in a certain practice, then it also prohibits those officials from creating an arrangement whereby officials of another nation perform the prohibited action. Imagine prison officials who do not actually torture prisoners in their custody but turn the prisoners over to other inmates to do what is forbidden to the officials. These prison officials can be faulted not just for the transfer but also for the torture that occurred through the arrangement they created.
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The dignity principle immanent in the Fifth and Eighth Amendments binds the United States and all those who act on its requests and in its interests.

A more difficult legal question presented by extraordinary rendition concerns the territorial reach of the constitutional ban against torture. Americans are fully protected by the Constitution no matter where they reside. Yet they have not been the target of extraordinary rendition, nor have aliens who are residents of the United States. With one possible exception, extraordinary rendition has been used only against foreign nationals living abroad—for example, a German citizen traveling in Macedonia was seized by CIA officials and taken to Afghanistan, and an Egyptian citizen was kidnapped by CIA agents on the streets of Milan and taken to Egypt.

The one possible exception to this rule concerns the extraordinary rendition of Maher Arar. He was seized by immigration officials on September 26, 2002, at JFK Airport, held virtually incommunicado for twelve days in nearby detention facilities, and then sent to Syria via Jordan for, as he alleges, the specific purpose of interrogation under conditions of torture. Arar brought a suit in federal court to test the legality of his rendition. That suit was
soon dismissed on the pleadings by the district court, and the dismissal was affirmed by a three-judge panel of the Court of Appeals for the Second Circuit. The Second Circuit then decided to hear the case en banc. The en banc argument was held on December 9, 2008, in the closing days of the Bush administration. Obama took office on January 21, 2009, and some had hoped that he might change the government’s position in that case. That did not occur, however, and on November 2, 2009, the Second Circuit sitting en banc sustained the position originally taken by the Bush administration. It affirmed the district court’s dismissal of Arar’s suit, thereby depriving Arar of any opportunity to prove his case at trial or even to begin discovery.
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Arar had only the most fleeting connections to the United States. He was born in Syria, and by virtue of that birth is a citizen of Syria. He moved to Canada with his family as a teenager and continued to reside there. At the time of his arrest in 2002 he was thirty-three years old and had become a naturalized citizen of Canada. Arar had been vacationing with his family in Tunisia and was arrested when he was returning to Canada for business. His itinerary took him from Tunisia to Switzerland and then on to JFK, where he was to take a flight to Montreal. Transit passengers at JFK need to clear customs, and upon presenting his passport to an immigration official, Arar was arrested. The arrest was based on a tip (which was later proved to be false) from the Royal Mounted Police of Canada that identified Arar as a member of a terrorist organization.

After his brief detention in the United States, Arar was flown to Syria, where he was imprisoned for ten months in a grave-like cell measuring six feet long, seven feet high, and three feet wide. He alleged that during his first twelve days in Syria he was interrogated for some eighteen hours a day and severely beaten. The interrogation ceased when Canadian officials who had learned of his presence in Syria interceded on his behalf. Yet
Arar remained incarcerated for nine more months, at which time Canadian officials were able to secure his release.

From my perspective, Arar’s imprisonment and interrogation, if established at trial, violate the U.S. Constitution. This conclusion is not derived from the fact that Arar, unlike the German or Egyptian citizens, was arrested on United States soil and imprisoned in the United States for a number of days before being sent by United States agents to Syria. On my view, his entitlement to the protection of the Constitution derives from the more general notion that the Fifth and Eighth Amendments and their ban on torture are applicable to the officers of the United States and their agents wherever they act and against whomever they act.

Recall that the Fifth Amendment purports to protect any “person.” The Eighth Amendment is cast as a flat prohibition with no effort to delineate the group of persons protected, and it too should be understood as defining the authority of U.S. officials. More fundamentally, my reading of the Fifth and Eighth Amendments derives from the underlying value at issue—a just and proper regard for the dignity of each person held in state custody. Human dignity is violated whenever someone is tortured, regardless of where the torture takes place. A violation of the Constitution and the basic charter of this nation occurs when the persons responsible for the torture are U.S. officials or agents acting on their behalf.

This broad understanding of the Constitution is reflected in the provisions of the Detainee Treatment Act of 2005, which prohibits torture by U.S. officials wherever they act and against whomever they act. It is also reflected in the federal statute criminalizing torture; it specifically prohibits torture by U.S. officials acting outside the country.
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Of like import is the 2008 decision of the Supreme Court invalidating a 2006 statute denying habeas corpus to the Guantánamo prisoners (all foreign nationals).
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Admittedly, the Court in that case did not determine what
substantive rights the Guantánamo prisoners had, but the very act of extending the constitutional protection of habeas corpus to these prisoners necessarily implies that they had some constitutional rights—the most basic—otherwise the writ would be of no utility.

This interpretation of the recent Supreme Court decision accords with a constitutional tradition reaching all the way back to the early 1900s and cases involving the territories the United States acquired as a result of the Spanish-American War. One of these cases posed the question of whether the Sixth Amendment guarantee to trial by jury was applicable in the Philippines, which was then being held as a colony.
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The Supreme Court concluded that the Bill of Rights was not in its entirety applicable to the administration of an unincorporated territory such as the Philippines.
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Yet the Court qualified that holding by declaring that U.S. officials were bound always to respect the fundamental rights of all persons living in the territory.
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Among the most basic or fundamental of all rights is the right against torture.