Friday, March 27, 2009

Torture Tales: In Two Countries, Coming Back to Haunt

      When Binyam Mohamed was returned to Britain in February after nearly five years in the Guantanamo detention camp, his allegations that a British intelligence agent had colluded in his torture overseas rocked the British government. Now, a month later, Attorney General Patricia Schotland has formally directed Scotland Yard to investigate the allegations. Not satisfied, a spokesman for the opposition Liberal Democrats is demanding an independent judicial inquiry — in his words — “to ensure that trust in government and international respect for Britain is restored.”
      Contrast the events in Britain with the muted reaction in the United States in the past two weeks to the most compelling evidence to date that the Central Intelligence Agency systematically tortured high-level al Qaeda captives while held in secret prisons overseas. The evidence comes from a two-year old report by the International Committee for the Red Cross (ICRC), which interviewed the 14 prisoners after they were transferred to Guantanamo in September 2006. The report, leaked to University of California journalism professor Mark Danner, explicitly concluded that the interrogation techniques “constituted torture” and “cruel, inhuman or degrading treatment” — both violations of the Geneva Conventions governing treatment of wartime captives.
      Granted, the allegations of torture are hardly new. Human rights groups, lawyers for prisoners, and journalists have been documenting the abusive techniques used against suspected terrorists by military and CIA interrogators almost since the opening of the Guantanamo prison camp in January 2002. The Washington Post’s Dana Priest was awarded the Pulitzer Prize for her stories in 2005 confirming the existence of the CIA’s secret prisons and casting doubt on the U.S. government’s official denials of torture.
      Still, the ICRC report comes, in Danner’s words, with exceptional “authenticity and credibility.” As to its credibility, the ICRC is officially charged under international law with monitoring compliance with the Geneva Conventions. It safeguards its neutrality by keeping its reports confidential, sharing them only with the governments involved. Indeed, the ICRC responded to Danner’s accounts by expressing regret about the disclosures.
      As to the authenticity of the report, Danner notes that ICRC representatives obtained detailed and parallel accounts of the interrogations when they interviewed the 14 prisoners separately in December 2006. According to Danner, the ICRC report specifically writes off the possibility that the prisoners fabricated the accounts since they had been isolated from each other.
      Given that background, news of the ICRC report might have been expected to produce a surge of outrage, protest, and controversy. Instead, Danner’s articles — a full account in the April 9 issue of The New York Review of Books and a condensed op-ed on March 15 in the New York Times — seem to have turned into hardly more than a two-day story. A handful of newspapers published editorials calling for an independent investigation. The American Civil Liberties Union and other human rights groups did the same. But one looks in vain for any palpable reaction from the White House, the Justice Department, or Congress.
      In the first press briefing after the story broke, White House press secretary Robert Gibbs skirted the only question about the report by noting that President Obama had already changed the rules regarding detainees. Two days later, Attorney General Eric Holder told reporters he was “mindful” of the stories, but evinced little interest, according to the account by Congressional Quarterly’s Keith Perine. Specifically asked whether an investigation was under way, Holder replied, “I wouldn’t say that.”
      For his part, CIA Director Leon Panetta is on record opposing any criminal prosecutions of the CIA agents responsible for treatment that — according to the ICRC report — entailed beatings, denial of solid food, sleep deprivation, exposure to extreme temperatures, and forced nudity. “I would not support, obviously, an investigation or prosecution of those individuals,” Panetta told the Senate Intelligence Committee on February 26. While pledging to cooperate with the committee’s investigation, Panetta said he believed the agents “did their job . . .pursuant to the guidance that was provided them, whether you agreed or disagreed with it.”
      In Britain, Binyam Mohamed is taking a similar view of the MI5 agent who, according to his account, fed questions and information to Pakistani officials during his captivity in 2002 and who, he surmises, must have known he was being tortured. “I'm very pleased that an inquiry is taking place,” Mohamed said in a statement issued by his lawyers on March 26. But, Mohamed added, “I feel very strongly that we shouldn't scapegoat the little people or blame Witness B [the unnamed agent]-- he was only following orders.”
      Danner’s op-ed in the Sunday Times hit breakfast tables just as former Vice President Dick Cheney was telling CNN’s John King on “State of the Union” that the Obama administration was making the United States less safe by abandoning the Bush administration’s anti-terror policies. As Danner points out, however, the evidence of torture creates an apparent dilemma for keeping the al Qaeda 14 in captivity. The torture will taint and possibly jeopardize any prosecutions, but — as Danner concedes — many of them likely have “blood on their hands.” The Obama administration, Danner writes, is “haunted” by what its predecessor did. So, he might have added, are we all.

Sunday, March 15, 2009

Supreme Court Tenure: Too Much of a Good Thing?

      The news that Justice Ruth Bader Ginsburg had been diagnosed with pancreatic cancer raced through legal and judicial circles in a cyber-instant on February 5. With Chief Justice William H. Rehnquist’s death from thyroid cancer in September 2005 still fresh in mind, Ginsburg’s medical bulletin prompted immediate research on survival rates for pancreatic cancer and ghoulish speculation about her likely successor.
      The overall statistics are grim: the one-year survival rate is 20 percent; for five years, only 4 percent. But a month later, Ginsburg’s prognosis appears more favorable than the norm. The 1-centimeter lesion originally detected in a CAT scan in late January turned out to be benign. A smaller tumor found during surgery was malignant, but it was removed. Surgeons found no evidence that cancer had spread to other parts of the body.
      Ginsburg survived colon cancer 10 years ago without missing a single argument. She was back on the bench in late February, her performance seemingly unaffected. With the favorable news, however, comes the reminder that life tenure for Supreme Court justices means that turnover comes not at any regular or any logical intervals, but according to medical vicissitudes or personal predilections of the individual justices.
      This is the law of succession in hereditary monarchies and personal dictatorships, but not in constitutional republics. Of course, the Constitution provides life tenure for federal judges — and for good reason. Life tenure is a good thing for ensuring the independence of the federal judiciary. But too much of a good thing may not be so good. And there are good arguments that given the unique role that Supreme Court justices have come to play in the American system of government, life tenure for The Nine is just that: too much of a good thing.
      One statistic frames the issue: recent justices have been serving longer on average than justices did in most of U.S. history. As pointed out by eminent legal scholars Paul Carrington at Duke and Roger Cramton at Cornell, the average tenure of justices during the court’s first 180 years — from 1789 through 1970 — was about 14 years; for justices who have retired since 1970, it is around 26 years.
      Two factors contribute to the trend. Justices appear to be living longer. A fair number of early justices lived into their 70s, but recent justices are staying even longer: Lewis F. Powell Jr. retired three months before his 80th birthday; William J. Brennan Jr. and Thurgood Marshall retired at 83, Harry A. Blackmun at 85. And Rehnquist was one month shy of 81 when he died.
      Presidents also seem to be appointing somewhat younger justices. Consider Byron R. White (44 when appointed), Rehnquist (47), and Clarence Thomas (43). Not to mention John G. Roberts Jr., appointed at age 50 as the youngest chief justice since John Marshall was appointed at age 45.
      So justices start earlier and live longer. And with few exceptions they stay on the court as long as possible. This conclusion emerges from the recent paper, “Modern Departures From the Supreme Court,” by Santa Clara University professors Terri Peretti and Alan Rozzi. They set out to examine whether justices time retirements to allow an ideologically compatible president to appoint an ideologically compatible successor. They conclude that so-called “strategic retirements” are the exception, that justices in fact continue to serve because they do not want to lose their position or influence.
      There are exceptions: Potter Stewart in good health made way for President Reagan to appoint a Republican; White in good health gave President Clinton the chance to name a Democrat. And occasionally justices’ efforts to time their departures fail. Earl Warren tried to give President Johnson the chance to name his successor, but the Senate balked. William O. Douglas wanted to stay long enough for a Democrat to name his successor, but senility intervened.
      Carrington and Cramton have helped assemble a diverse group of legal academics — liberals and conservatives alike — to argue that these statistics demonstrate a problem of institutional unaccountability. With long tenure and infrequent turnover, the court becomes out of touch — not as suggested by the crude attacks on “unelected judges,” but isolated to some extent and deprived of the benefit of “new blood” at regular intervals.
      Moreover, with no regular turnover, each nomination and each confirmation assumes an outsized political significance. Every president sees each nomination as the chance for a long-lasting legacy; likewise, interest groups and senators in both parties see each confirmation as a battle for lasting control of the court. And this is true whether or not justices deliberately play into the political gamesmanship.
      The solution proposed by the Carrington-Crampton coalition is a hybrid form of term limits for the justices: 18 years of active service on the court, followed by life tenure as a senior justice; senior justices could serve on trial or appellate courts or even on the Supreme Court itself if a regular justice is recused. Judicial independence is preserved, but regular turnover — a new justice every two years — provided.
      The obstacles to the proposal are foreboding: inertia, tradition, and the absence of any party or interest group with strong motivation to push it. Perhaps — as the old joke goes — you can’t get there from here. But the logic is strong: strong enough for Congress to take a look.