Dahlia Lithwick: Getting Away With Torture

Our "terror trials" aren't working. The prosecutions of a fistful of prisoners at Guantánamo Bay—just getting underway after more than six years—are barely moving forward. Evidence is flimsy and stale. Prisoners claiming to have been abused and subjected to involuntary use of drugs are refusing to participate in their trials. There may yet be verdicts at Guantánamo. But following years of abuse, neglect and secrecy, there won't be justice. The other place we won't see legal accountability is at the upper levels of the Bush administratiom, where evidence of lawbreaking is largely dismissed or ignored. I want to be clear that there is no moral equivalence between the actions of members of the Bush administration and those of alleged "enemy combatants" at Guantánamo. But both the tribunals at Guantánamo and the wrongdoing in the Bush administration reflect how legal processes can fail under extreme political pressure.

Outside the Bush administration, there is bipartisan agreement that Guantánamo should be shut down and the military commissions scrapped. A compelling case could have been made for Nuremburg-style trials for some of the prisoners there—including Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks. But the CIA admits Mohammed was waterboarded, rendering his confession unreliable and any conviction a sham. And even if we do convict this handful of terrorists at Guantánamo, there still remain almost 300 detainees at the base, held there for years without charges. Some were turned in by Afghan captors for bounties. Some are held as a result of coerced testimony from others.

Full and fair trials might have happened for enemy combatants, but missteps have led to a legal process that now exists solely to prove the detentions were justified; that the captives are—as former Defense secretary Donald Rumsfeld once called them—"the worst of the worst." That's a political conclusion, not a legal one, and it's why Col. Morris Davis—former chief prosecutor for the military commissions at Guantánamo—resigned last fall, claiming political interference had created the impression of a "rigged process stacked against the accused." Davis later told The Nation that in a conversation with Pentagon general counsel William Haynes in 2005, Haynes told him flatly, "[w]e can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We've got to have convictions."

Bad evidence, tortured testimony, delay, error, guilty prisoners jumbled up with merely unlucky ones and the necessity of politically motivated convictions. But politics won't keep just the Gitmo prisoners from seeing justice. Politics will also keep those responsible for alleged crimes at Guantánamo from ever having to defend their actions in a court of law.

If prisoners were illegally tortured at Guantánamo and Abu Ghraib, who was responsible? A memo written by John Yoo, a deputy at the Justice Department's Office of Legal Counsel from 2002 to 2003, was declassified this month. He argued that military interrogators could subject suspected terrorists to harsh treatment as long as it didn't cause "death, organ failure or permanent damage." (It was later rescinded.) While it's possible Yoo was merely producing a theoretical, lawyerly opinion—he calls it "d=S" —it may well have opened the floodgates to prisoner torture and even death. Yet virtually nobody suggests Yoo should be subject to prosecution.

Yoo's possible contributions to torture at Guantánamo almost pale in comparison with ABC News's revelations that administration officials, including Dick Cheney, Condoleezza Rice, John Ashcroft, George Tenet, Colin Powell and Don Rumsfeld, met several times in the White House to discuss torture techniques for Al Qaeda suspects. The group signed off on slapping, pushing and waterboarding, in a manner "so detailed … some of the interrogation sessions were almost choreographed." Days later, President George W. Bush confirmed he "approved" of these tactics.

Yet despite the fact that senior members of the Bush administration may have violated the War Crimes Act of 1996, the Geneva Conventions and the Uniform Code of Military Justice, there is scant serious talk of legal accountability. The Justice Department's Office of Professional Responsibility is investigating whether agency attorneys provided the White House and CIA with faulty legal advice. That's a bit like setting the local meter maid on them.

Few believe the high-level architects of the American torture policy will ever face domestic prosecution. As Yale Law School's Jack Balkin pointed out, the political costs are too high: "One can imagine the screaming of countless pundits arguing that the Democrats were trying to criminalize political disagreements about foreign policy."

High-ranking administration officials and enemy combatants may have broken the law, and their legal situations are weirdly parallel. Both show how the rule of law can fracture under the strain of politics. Those alleged lawbreakers at Guantánamo can never be acquitted for purely political—as opposed to legal—reasons. The alleged lawbreakers in the Bush administration will never be held to account on precisely the same grounds.