( – promoted by buhdydharma )
Many of you will know that one of the Dog’s major issues is torture, it repercussions on us as a society and the absolute need to investigate and prosecute those that ordered it and those that carried it out. If you are interested in what the Dog has said on this before, you can read about it here, here and here.
In the last few days we have seen Sen. Leahy moving forward with his proposal for a “Truth Commission” on the torture issue. He has been careful to say that the fact of the commission did not preclude the possibility of prosecutions. That is all to the good, the problem comes in the fact that he wants this Commission to be able to issue immunity in exchange for testimony. This is a pretty common tactic in criminal investigations, but given the inherently political nature in this case and the very real fact that there will be push back from those that are ideologically dedicated to the idea that “when the President does it, it isn’t illegal” it is more than a little worrisome.
This is not a radical worry by any means. Last night on the Rachel Maddow Show, Speaker of the House Nancy Pelosi also expressed her concern that if this commission grants immunity it may very well disrupt the overall goal of effective prosecutions for those that ordered and those that carried out torture. As a nation it is important that we not only fully know what and how this torture happened, it is critical to our way of governance that we also punish those that broke the law, especially in the case of something as toxic and heinous as State sanctioned torture.
Article VI of the U.S Constitution, Clause II states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
It is clear from this that any treaty we make, when ratified by the Senate, and signed by the President has exactly the same level of effect as all other Federal laws. Let that sink in for a minute. Any treaty is as important and enforceable as any law made by Congress. This is a basis of our system of legal justice.
We are signatories to the International Conventions Against Torture, which require among other things that every instance of alleged torture must be criminally investigated and if there is evidence of actual torture, signatories are required to prosecute them under laws that ban the practice. It specifically states that an order from a superior officer is not a valid defense for the act.
This leads the Dog, with others, to ask why we are even considering a Commission at all? There is no wiggle room in our obligations; there is no flexibility in either the Constitution nor the Conventions Against Torture Treaty. There are, of course, political considerations that are driving this, but this is and should not be about politics. It is an issue of law, not political discourse. Now that is an idealists point of view, but there are some ideals, like rule of law, that should be defended with idealism.
That leads to the Dog’s suggestion of how to move forward. It is time to file suit in Federal Court to force the Government of the United States to fulfill its legal responsibilities in this matter. The 11th Amendment, in conjunction with Article III establishes the concept of Sovereign Immunity. This is designed to prevent the citizens of the nation from suing their government for carrying out its functions. There is, however, a broad wavier of this immunity in the Administrative Procedures Act, that courts can set aside the immunity, if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. ยง 706(2)(A)
It is under this premise that the Dog thinks that we should, as people that care about the rule of law and abhor torture should sue under. By taking it directly to the Federal Courts and using the known public testimony and admissions of the criminal Bush administration we should be able to show that the Department of Justice’s failure to act, up to now, on this matter is not in accordance with the highest law of the land and must be remedied by investigation and prosecution under the International Conventions Against Torture and our laws against torture. This step would remove the political wrangling and prevent any commission from complicating the required.
The Dog is not an attorney, so he would love to hear from any who are in comments on why this would be inadvisable or impossible. It seems to be the right thing on its face, but law is often more complex than just the face value.
So, what do you think citizens? The floor is yours.
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crazy with this?
who would be responsible for enforcing the ruling? DOJ and Holder?
They are responsible now and obligated by law and the Constitution to prosecute….
…against torts. This has very few exceptions, under the Federal Tort Claims Act and the Tucker Act, but those exceptions generally do not waive the immunity of the Federal Government. The only possible route for a lawsuit against the Federal Government for torture would have to be brought by a victim of torture by Federal employees and was able to get a hearing under the Federal Tort Claims Act clause stating “circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” The other possibility would be that the Federal government consented to the suit, which is very unlikely. The FTCA, not the APA, is the relevant law in this situation.
Furthermore, this has been tried. In the cases to date, the state secrets doctrine has prevented the issue of sovereign immunity from even coming up. Cases have been dismissed because the claimant is unable to produce evidence of the wrongdoing, because the government is allowed to have evidence suppressed as state secrets. So, I believe this is probably a dead end.
I don’t think it can work. Why? Because to sue in the federal courts, you have to have a “case and controversy.” The Constitution requires that. It’s called “standing.” That means that the person suing has an actual interest in the outcome. It’s a complicated, but well developed area of the law. Long story short: in all likelihod the only people who can sue about torture are– wait for it– people who were tortured. And every single case where that’s going on is running headlong into a brick wall, namely “state secrets,” which Obama, and before him Bush, argued required the end of cases (dismissal) rather than the exclusion of state secrets evidence. Long story short: the proposed lawsuit(s) cannot happen.
The routes to making it happen are already in process, by people who were actually tortured, but they’re all running headlong into the “state secrets” wall.
I know it sucks.
But as the Big 9 (your Supreme Court) would say, you want to change this? Change the executive branch. Because the government has all the standing it ever needed to prosecute these mfers for renditions and torture in federal court. They just need is the desire to do so.