U.S. v. Pakistan on transparency and accountability

A Pakistani Supreme Court ruling does something unthinkable in the US: compels disclosure of detainee abuse

Published February 13, 2012 7:52PM (EST)

(updated below)

Virtually without exception, the American judiciary has refused to allow any victims of America's War on Terror abuses -- whether foreign national or American citizen -- to even have their claims heard in court. Federal courts have repeatedly shielded government officials from any accountability for these abuses, not by ruling in their favor on the merits, but by ruling that they need not answer for their actions at all. Courts have accomplished this whitewashing by accepting the Bush and Obama DOJ's arguments that government actions undertaken as part of the War on Terror are completely shielded from judicial review -- i.e., from the rule of law -- by both secrecy doctrines (it's too secret to risk having a court examine) and immunity prerogatives (government officials cannot be sued even for egregious wrongdoing committed while in office). Here are just a few illustrative examples:

Findlaw, November 19, 2007 -- U.S. court bars judicial challenge to warrantless eavesdropping brought by victims:

Last week, in Al-Haramain Islamic Foundation, Inc. v. Bush, the U.S. Court of Appeals for the Ninth Circuit ruled that the "state secrets privilege" forbids plaintiffs from going forward with their challenge to the National Security Agency's ("NSA's") warrantless wiretapping program. In order to make their case, the court ruled, the plaintiffs would have to rely on evidence that would compromise national security.

New York Times, September 8, 2010 -- U.S. court bars judicial challenge to torture program brought by victims:

A federal appeals court on Wednesday ruled that former prisoners of the C.I.A. could not sue over their alleged torture in overseas prisons because such a lawsuit might expose secret government information. The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. . . .

In April 2009, a three-judge panel on the Ninth Circuit adopted the narrower view, ruling that the lawsuit as a whole should proceed. But the Obama administration appealed to the full San Francisco-based appeals court. A group of 11 of its judges reheard the case, and a narrow majority endorsed the broader view of executive secrecy powers. They concluded that the lawsuit must be dismissed without a trial — even one that would seek to rely only on public information.

David Cole, New York Review of Books, June 15, 2010 - U.S. court bars judicial challenge to rendition program brought by victim:

On Monday, June 14, the Supreme Court declined to hear Maher Arar’s case, conclusively shutting the door on the Canadian citizen’s effort to obtain redress from US officials who stopped him in September 2002 while he was changing planes on his way home to Canada and shipped him instead to Syria, where he was tortured and imprisoned without charges for nearly a year. In so ruling, the Court refused to reconsider the decision of the US Court of Appeals for the Second Circuit, sitting en banc, which had ruled in November 2009 that Arar’s case raised too many sensitive issues of national security and confidential information to permit its adjudication in a court of law. . . .

[W]hen we filed suit in 2004 to seek damages from the US officials directly responsible for the decision to send Arar to his torturers, lawyers for the Bush administration argued that even assuming that federal officials had intentionally delivered Arar to Syria to be tortured, and blocked him from seeking court protection while he was in their custody, they could not be held liable for his injuries on the grounds that the case implicated secret communications and national security concerns not appropriate for court resolution. Regrettably, the courts agreed with the Bush administration position—and so has Obama’s Department of Justice.

New York Times, December 7, 2010 - U.S. court bars judicial challenge to targeted assassinations of citizens:

A federal judge on Tuesday threw out a lawsuit that had sought to block the American government from trying to kill Anwar al-Awlaki, a United States citizen and Muslim cleric in hiding overseas who is accused of helping to plan attacks by Al Qaeda’s branch in Yemen. The ruling, which clears the way for the Obama administration to continue to try to kill Mr. Awlaki, represents a victory in its efforts to shield from judicial review so-called targeted killings, one of its most striking counterterrorism policies. . . .

“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation,” [the ACLU's Jameel] Jaffer said. “It would be difficult to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”

AP, January 23, 2012 - U.S. court bars judicial challenge to due-process-free imprisonment of citizens:

A federal appeals panel on Monday turned away efforts by a U.S. citizen who was detained for nearly four years as an "enemy combatant." Jose Padilla’s efforts to reinstate a lawsuit against former Defense Secretary Donald Rumsfeld and other government officials were rejected by the 4th U.S. Circuit Court of Appeals in Richmond.

Padilla contended that he's entitled to sue because the government deprived him of other ways to seek remedies for his treatment. The appeals panel affirmed a federal judge's dismissal of Padilla's lawsuit, ruling that Congress, not the court system, has jurisdiction over military detention cases and that Congress has not explicitly provided a remedy for civil damages.

But consider the extraordinary -- and now distinctly un-American -- event that just happened in Pakistan, from CNN, today:

Seven men detained by Pakistan's spy agency, the ISI, appeared in court Monday in a landmark case that places one of the nation's most powerful institutions under the scrutiny of its highest court.

The men -- who appeared to be in pain and poor health -- hobbled into the courthouse, surrounded by dozens of armed police officers and family members. . .

Pakistan's Supreme Court ordered the government to give each detainee a medical exam and report the results in four days. The court also ordered the spy agency to produce all documents related to the detention of the men by the first week of March. . . . 

The ISI has also been ordered to explain the deaths of four other detainees. . . .

The Supreme Court case breaks new ground in that the ISI has long been thought untouchable. Legal proceedings in the nation's highest civilian court could expose the inner workings of the secretive agency like never before.

Few people have ever challenged the ISI, Pakistan's most feared and shadowy institution. The spy agency has been accused of backing and toppling politicians, using militant groups as proxies and backing extrajudicial killings.

The ISI has denied the accusations, but no one from the agency ever speaks publicly on camera and no one from the ISI has ever been put on trial.

One constantly hears in American political discourse that Pakistan is so terribly un-democratic because the shadowy, omnipotent ISI functions with no accountability or transparency. Yet here they are being ordered by that nation's highest court to account for serious detainee abuse (this, despite the fact that Pakistan's problems with Terrorism are, at the very least, as pressing as those faced by the U.S.). Yet this type of accountability just brought to Pakistan's intelligence service is simply inconceivable in the United States. It is virtually impossible to imagine the U.S. Supreme Court ordering the CIA to disclose documents about its treatment of detainees or, even more unrealistically, to permit the victims of CIA abuse to have their grievances heard in court. Anyone who doubts that can simply review the past decade of full-scale immunity bestowed by the Justice Department and subservient American federal courts on all executive agencies in the War on Terror. We should think about that the next time some American pundit, politician, or media figure righteously holds forth on how undemocratic and oppressive is Pakistan as opposed to the U.S.


UPDATE: Speaking of American justice and Pakistan, Eric Lewis has an Op-Ed in today's New York Times -- under the headline: "Britain Shouldn't Aid A Lawless America" -- detailing the plight of two Pakistani rice merchants who were detained by British forces in Iraq 2004 when they were on a business trip to Iran, then turned over to the U.S. and shipped to Bagram, where they have been held for the last seven years without charges of any kind. Since then, the two nations have played a shell game as the men's relatives try to secure their release, with the British government insisting to British courts that they can do nothing because they're in American custody, while the American government argues to its courts (thus far successfully) that the men have no legal rights because they are being held "in a war zone" (which they were taken to by the U.S.). For an appreciation of the lowly depths to which American justice has sunk, that Op-Ed is worth reading.

By Glenn Greenwald

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