In early December, in a highly unusual move, a federal court in New York agreed to rehear a lawsuit against former Attorney General John Ashcroft brought by a Canadian citizen, Maher Arar. (Arar was a victim of the administration's extraordinary rendition program: he was seized by U.S. officials in 2002 while in transit through Kennedy Airport and deported to Syria, where he was tortured.) Then, on Dec. 15, the Supreme Court revived a lawsuit against Donald Rumsfeld by four Guantánamo detainees alleging abuse there—a reminder that the court, unlike the White House, will extend Constitutional protections to foreigners at Gitmo.
Finally, in the same week the Senate Armed Service Committee, led by Carl Levin and John McCain, released a blistering report specifically blaming key administration figures for prisoner mistreatment and interrogation techniques that broke the law. The bipartisan report reads like a brief for the prosecution—calling, for example, Rumsfeld's behavior a "direct cause" of abuse. Analysts say it gives a green light to prosecutors, and supplies them with political cover and factual ammunition. Administration officials, with a few exceptions, deny wrongdoing. Vice President Dick Cheney says there was nothing improper with U.S. interrogation techniques—"we don't do torture," he repeated in an ABC interview on Dec. 15. The government blamed the worst abuses, such as those at Abu Ghraib, on a few bad apples.
High-level charges, if they come, would be a first in U.S. history. "Traditionally we've caught some poor bastard down low and not gone up the chain," says Burt Neuborne, a constitutional expert and Supreme Court lawyer at NYU. Prosecutions may well be forestalled if Bush issues a blanket pardon in his final days, as Neuborne and many other experts now expect. (Some see Cheney's recent defiant-sounding admission of his own role in approving waterboarding as an attempt to force Bush's hand.)
Constitutionally, Bush could pardon everyone involved in formulating and executing the administration's interrogation techniques without providing specifics or naming names. And the pardon could apply to himself. Such a step, however, would seem like an admission of guilt and thus be politically awkward. Even if Bush takes it, civil suits for monetary damages could still proceed; such cases, though hard to win, are proliferating. Yet most legal scholars argue that a civil suit would not the best approach here. Neuborne calls it an "excessively lawyer-centric" strategy and says judges are extremely reluctant to award damages in such cases. Conservative legal experts like David Rifkin (who served in the Reagan and first Bush administrations) argue that no accounting is necessary, since the worst interrogation techniques, like waterboarding, have already been abandoned and Obama is expected to make further changes.
A growing group of advocates are now instead calling for a South African-style truth and reconciliation commission. Kenneth Roth, executive director of Human Rights Watch, says that although "we know what went on," "knowledge and a change in practices are not sufficient: there must be acknowledgment and repudiation as well." He favors the creation of a nonpartisan commission of inquiry with a professional staff and subpoena power, calling it "the only way to definitively repudiate this ugly chapter in U.S. history."
But for those interested in tougher sanctions, one other possibility looms. Michael Ratner, president of the Center for Constitutional Rights and author of "The Trial of Donald Rumsfeld," points out that over 20 countries now have universal jurisdiction laws that would allow them to indict U.S. officials for torture if America doesn't do it itself.
A few such cases were attempted in recent years but were dropped, reportedly under U.S. pressure. Now the Obama administration may be less likely to stand in their way. This doesn't mean it will extradite Cheney and Co. to stand trial abroad. But at the very least, the threat of such suits could soon force Bush aides to think twice before buying plane tickets. "The world is getting smaller for these guys," says Ratner, "and they'll have to check with their lawyers very carefully before they travel." Jail time it isn't—but it may be some justice nonetheless.
By Susie Madrak — December 29, 2008