It is technically illegal for the government to torture prisoners. Almost no one would deny that. Section 2340 of the federal criminal code makes it a crime punishable by up to 20 years to “inflict severe physical or mental pain and suffering” on anyone in custody. Common Article 3 of the Third Geneva Convention—which like all ratified treaties has the force of law under the Constitution—likewise prohibits the “mutilation, cruel treatment and torture” or the “humiliating or degrading treatment” of captives. But the government can still go ahead and torture prisoners without any legal consequence, because neither of those laws can be enforced.
That, anyway, is what we have to conclude from a federal appeals court decision to dismiss a case brought by five former prisoners of the CIA who say they were tortured in captivity. The Ninth Circuit Court ruled 6-5 to dismiss the case against Jeppesen Dataplan, a Boeing subsidiary accused of helping transport the prisoners to other countries to be interrogated, on the grounds that it might expose government secrets if the case went to trial. A three-judge panel of the court had originally agreed to hear the case, but after the Obama administration appealed the court “reluctantly” decided en banc that this was a “rare case” in which the need to protect government secrets was more important the plaintiffs right to a trial.
There are certainly some secrets which it's appropriate for the government to protect. The problem with the so-called “state-secrets privilege,” as I have written, is that the government has a history of using it to cover up its own wrongdoing. The privilege was originally invoked by the Truman administration to cover up its negligence in the 1948 crash of a B-29 bomber. Similar grounds were used to try to block both the publication of the Pentagon Papers and the release of the Watergate tapes, even though both were more embarrassing to the government than anything else. Under the last Bush administration, the privilege was invoked with increasing frequency to keep cases dealing with torture, rendition, and warrantless wiretapping from going to trial.
In this case, the court ruled that it wasn’t enough simply to bar classified information from being used at trial, but that the case couldn’t proceed even if it considered only information that is already publicly available. In other words, even if we can show, without exposing any secrets, that the government tortured prisoners, we can’t hold it legally accountable for violating the law as long as the it claims that its actions should be secret. The court's ruling is similar to the Second Circuit's ruling last year that even if we did have Canadian citizen Maher Arar tortured, he couldn't seek damages on national security grounds. The ruling effectively vacates the law against torture—along with other laws protecting our civil liberties—by making the effectively unenforceable. And the ruling seems to actually protect only one, open secret: that the government broke the law.
As a presidential candidate, Barack Obama criticized President Bush’s extensive use of the state-secrets privilege to block cases against the administration. As president, Obama has made the same state-secrets claims that Bush did, arguing that not even federal judges should be able to review government secrecy claims. But if the executive can throw out cases against simply by claiming the state-secrets privilege, its actions become entirely beyond legal review. Even the judges who ruled for the Obama administration seemed uncomfortable with their decision, taking the unusual step of ordering the government to pay the plaintiff’s legal costs and urging the it to pay reparations to victims of the CIA’s “misjudgments or mistakes.” But, as the court’s minority noted, it’s unrealistic to expect the government to do an adequate job policing its own mistakes.
“To date, not a single victim of the Bush administration's torture program has had his day in court,” Ben Wizner, who argued the case for the American Civil Liberties Union, said in a statement. “If today's decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers.”
Nor is it only justice for a few torture victims that's at stake. As Glenn Greenwald noted a while back, the late Sen. Ted Kennedy put it well when he sought to prevent the executive from making just these kinds of broad state-secrets claims. As Kennedy said then, “When federal courts accept the executive branch’s state secrets claims as absolute, our system of checks and balances breaks down. By refusing to consider key pieces of evidence, or by dismissing lawsuits outright without considering any evidence at all, courts give the executive branch the ability to violate American laws and constitutional rights without any accountability or oversight, and innocent victims are left unable to obtain justice.”