Other Options on Torture - The Back Door

In my article Monday, I called attention to some legal scholars’ views on the likelihood of any members of the Bush administration being held accountable for their approval of "enhanced interrogation.” The methods are indistinguishable from the original directive by Gestapo chief Heinrich Müller in 1937, "Verschärfte Vernehmung," evidence that was deemed sufficient by a Norwegian court in 1948 to convict three Germans for war crimes.

This is what Spencer Ackerman found in his query of several legal scholars:

With nine months remaining in President George W. Bush's term, virtually no legal analyst expects that anyone in his administration will face indictment and prosecution in connection with the torture of terrorism detainees.

The great irony is that most of the legal scholars he surveyed have no doubt about the illegality of the administration’s behavior. As one said,

The "political appetite for that is nil," since "an excessive of zeal for prosecuting national-security activities, historically, hasn't happened."

Apart from impeachment by congress or criminal indictment by a U.S. court, several options were put forward by the scholars.

—Director of the Washington legislative office of the ACLU, Caroline Fredrickson proposes a commission modeled after the Church and Pike inquires of the 1970s that "revealed massive and systemic illegality within the intelligence services."

—Aziz Huq, director of the Liberty and National Security Project at New York University’s Brennan Center for Justice, hopes for legislation requiring the videotaping of all terrorism interrogations.

—Law professor at Pepperdine University, Douglas Kmiec says that the ultimate arbitration of the torture debate will occur at the polls when we vote on a new president and congress.

To me, these sound like anemic responses to what one scholar described as a virtual “panorama of illegality.” Is that the best this nation can do? If so, I suggest that we have been failed once again, not only by the executive, legislative and judicial branches of our government, but that as citizens we have failed by not demanding legal accountability.

In responses to my article, “Legal Options to Restoring a Crumbling Constitution,” a couple of other options were mentioned. With gratitude to the writers, I repeat them here.

Ohwilleke reminded us that the Military Commission Act gave almost everybody immunity:

The lawyers and electeds also probably had immunity even before then. Prosecutions for cover ups or perjury, a la Scooter Libby, maybe. Prosecutions for the acts themselves -- not happening.

But LiberalBadger said that while the MCA gives them immunity, a case could be made that that provision of the MCA is unconstitutional.

Also an Obama DOJ or commission, can also, in the name of transparency, release documents from the DOJ. Those can then be used by any other country. The existence of immunity makes this case available for other countries to pick up, according to international law. I believe that the case is already being drawn up here in Britain.

Here, the legal option is to release documents so that cases could be brought in other countries. I asked LiberalBadger to let us know more about what is happening in Britain.

In a comment titled, “The Other Option,” Liberal Thinking made a case for “going in the back door.”

I think we can constitute our own legal mechanism outside the federal government to try, convict, sentence and, if it should come to that, punish the offenders.

I call this "civil tribunals" because this is a civil mechanism to put together tribunals where public officials are held to account.

You would immediately object that this is illegal, because it's outside the established legal mechanisms. You would immediately object that these wouldn't be legitimate and wouldn't have the backing of the American people.
Liberal Thinking goes on to explain in some detail. It’s worth taking a close look.
Well, it would take some work but both of these objections could be overcome. And, in the end, having Bush tried by a civil tribunal isn't necessary so long as it forces the normal federal judicial mechanisms to take their course. That's the point, anyway. If he had to stand trial in federal court for violating federal law (and the Constitution), and that trial were fairly done, with whatever outcome (presumably conviction on many, many counts), then that would be sufficient justice.

But to get there we might have to shock the current crop of politicians out of their shells, worrying them that they, too, might end up in the dock. And the way to do that is to carefully, systematically, and inevitably put together civil tribunals to put to trial anyone in the government who violated the Constitution (or committed crimes against humanity) with the threat of a criminal conviction and punitive measures (imprisonment, fines or even the death penalty).

What would give civil tribunals legal force? The same thing that gave the Constitution legal force. It has to be done by an action of the people. To do that, the people would have to set up conventions in all the states and hold elections to impanel delegates. These conventions would then set the rules and set up funding for the tribunals. Acting through this mechanism, which has unassailable legal precedent (because it gave force to the Constitution, which obviously has legal force), the tribunals would be legal and have the same force as any other federal mechanism.

The act of convincing enough people to hold conventions and set up the tribunals would make them legitimate. It would show that they had the backing of the American people.

Read this next paragraph carefully, two or three times.

But this is all a mental exercise because in no case would the current government allow this kind of challenge to its legitimacy. That would mean that if enough people backed the civil tribunals there could only be one outcome. That outcome would be that the federal system would get its act together and put these people on trial.

I don't know if there are sufficient people in this country who care enough about democracy to take action. But I think the alternative at this point is clear. We'll lose Western democracy altogether. Without a concerted effort to hold these people accountable for subverting the government and acting outside the law there is no way to support the experiment we've all become accustomed to, that two-hundred-year-old experiment of giving legitimacy to action through the ballot box and holding everyone without exception accountable to the law.

If we are to push trials into reality then we have to set a deadline. I would suggest the end of 2009 as the sensible deadline. If trials haven't begun before then we should be well on our way to finding locations to hold fifty state conventions.

I can guarantee you that this isn't on the radar screen of our opponents. They think that they've stacked the courts, infiltrated the media, taken over the executive and neutered the Congress, so they probably think they are invulnerable.

That's why we need to walk in the back door.

I need to do some thinking and research on the proposal for a “civilian tribunal,” but I am excited about it. I am grateful to Liberal Thinking for taking the time to make the proposal in the detail he did. His, and all of the other comments I have received, were made by persons who care about this country and who believe that torture must not be rationalized. As one of you wrote,

The truth is very simple....torture is wrong and it is with great shame we as a nation have allowed George and Dick to perpetrate these crimes on our behalf.

To attempt redress of these wrongs, or our good name, with measures less than are merited by the seriousness of the crimes is, in the words of Dietrich Bonhoeffer, “cheap grace.” Where do we go from here?

- Milo