The president cannot declare torture to be lawful

Among the many awful things that the Bush-Cheney administration did was to normalize torture, coming up with various convoluted rationales as to why the ghastly practices they carried out did not constitute torture and thus were not war crimes. Alex Emmons writes about an important unanimous ruling by the Fourth Circuit Court of Appeals last Friday that has been largely overshadowed, like so much else, by this weird election season.

The case involved four Iraqi nationals who claimed that they had been tortured while in US custody at the notorious Abu Ghraib prison, and ultimately released without being charged with a crime. They filed a civil suit against CACI Premier Technology, Inc. (CACI) that worked under contract with the US military.

Last June, a district court ruled that a “cloud of ambiguity” surrounds the definition of torture, and that despite anti-torture laws, the decision to torture was a “political question” that could not be judged by courts.

That ruling echoed the widely discredited legal theories of the Bush administration, which argued that the war on terror gave the president the inherent authority to indefinitely detain and torture terror suspects, and conduct mass surveillance on Americans’ international communications.

But the Fourth Circuit soundly rejected that theory, saying that the United States has clear laws against torturing detainees that apply to the executive branch.

You can read the ruling of the Fourth Circuit here. The ruling overturned the District Court opinion that the case involved a political question that was outside the purview of the courts. The Appeals Court said it was, and the court should re-examine the case on its merits.

The important issue the Appeals Court addressed is the status of acts done by private contractors under contract with the government. Justice Barbara Milano Keenan wrote the opinion and said that it depended on whether the acts were lawful or unlawful.

In examining the issue of direct control, when a contractor engages in a lawful action under the actual control of the military, we will consider the contractor’s action to be a “de facto military decision” shielded from judicial review under the political question doctrine. However, the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity. Thus, when a contractor has engaged in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine. (p. 21)

Accordingly, when a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale underlying the political question doctrine does not shield the contractor’s actions from judicial review. (p.23)

The court said that if there was some doubt as to whether the actions by the contractor were legal or not, then that cloud of uncertainty may preclude legal action by the victims. But in this case there was no such doubt.

Here, the plaintiffs alleged pursuant to the ATS that CACI interrogators engaged in a wide spectrum of conduct amounting to torture, war crimes, and/or cruel, inhuman, or degrading treatment, as well as various torts under the common law. Among other things, the plaintiffs alleged that they were subjected to beatings, stress positions, forced nudity, sexual assault, and death threats, in addition to the withholding of food, water, and medical care, sensory deprivation, and exposure to extreme temperatures. Counsel for CACI conceded at oral argument that at least some of the most egregious conduct alleged, including sexual assault and beatings, was clearly unlawful, even though CACI maintains that the plaintiffs cannot show that CACI interrogators perpetrated any of these abuses. (p.27)

Justice Keenan said that the mere fact that the cases were complex did not mean that they were beyond the scope of the courts.

In reaching this conclusion, we agree with the observation that courts may not “decline to resolve a controversy within their traditional competence and proper jurisdiction simply because the question is difficult, the consequences weighty, or the potential real for conflict with the policy preferences of the political branches.” (p.31)

In a concurring opinion, justice Floyd said:

The precise contours of “what the law is” may be uncertain until a court evaluates the lawfulness of specific conduct. For example, despite repeated judicial application of torture laws, see ante at 30, the precise legal scope of the prohibition on torture is not perfectly defined. There is, in other words, conduct for which the judiciary has yet to determine the lawfulness: loosely, a grey area.

But this greyness does not render close torture cases nonjusticiable merely because the alleged torturer was part of the executive branch. While executive officers can declare the military reasonableness of conduct amounting to torture, it is beyond the power of even the President to declare such conduct lawful. The same is true for any other applicable legal prohibition. The fact that the President–let alone a significantly inferior executive officer–opines that certain conduct is lawful does not determine the actual lawfulness of that conduct. The determination of specific violations of law is constitutionally committed to the courts, even if that law touches military affairs. (p. 34) [My emphasis-MS]

So now the case goes back to the District Court for an examination of the merits of the case.

Some readers may remember president Richard Nixon (after he had been forced to resign) arguing in a famous interview with David Frost in 1977 that if the president orders an act, then that act becomes lawful.

Frost: … Would you say that there are certain situations – and the Huston Plan was one of them – where the president can decide that it’s in the best interests of the nation, and do something illegal?

Nixon: Well, when the president does it, that means it is not illegal.

Frost: By definition.

Nixon: Exactly, exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.

This ruling appears to challenge that broad interpretation.


  1. brucegee1962 says

    So Nixon’s position, and that of the contractors as well, was “As long as we are following orders, we can’t be prosecuted.” Wasn’t that also the defense at a certain series of trials in Nurenberg, as well?

Leave a Reply

Your email address will not be published. Required fields are marked *