Can We Sue the Government Over Torture?
Anyone can sue the government; Van Buren v. Barack Obama. I just need to file the papers in federal court. Oh, a couple of issues.
Torture is a crime but it is arguably also a tort. Torts are civil wrongs recognized as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. The injured person may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages.
Sounds like the kind of stuff we all would like in regards to torture. Compensation for victims and no more torture.
But before I call up a lawyer, I first need standing or the government will can my suit in a quick motion filing to dismiss. Standing means in this case I have to show I was personally affected by the torture. I wasn’t tortured, so this will be hard. Attorneys for Anwar al Awlaki’s father previously tried to persuade a U.S. District Court to issue an injunction a few year’s ago preventing the government from the targeted killing of his son. A judge dismissed the case, ruling the father did not have standing to sue. Awlaki was killed by the government.
What About a Victim Filing Suit?
OK, so maybe someone who was tortured himself could sue the U.S. government. That’d get around the question of standing.
First problem with one of the victim’s suing the USG is persuading the relevant U.S. courts that they have jurisdiction over the acts committed by Americans overseas and are prepared to apply U.S. laws extra-territorially. This gets even dicier because the torture took place sorta-kinda during a sort-kinda kind of war-thing.
This issue has been batted around the court system over Guantanamo for years, inconclusively.
But what if somehow victim actually did file a lawsuit in the U.S. against those Americans who tortured them?
Government officials acting under the “legitimate scope of their employment” are immune from suit. This is the “Westfall Act Certification” defense, via the Westfall Act of 1988. The Act permits the Attorney General, at his or her discretion, to substitute the United States as the defendant and essentially grant absolute immunity to individual government employees for actions taken within the scope of their employment.
The government would only have to say the torturers were just doing their jobs, which in a sad way they were, and that ends the suit.
There is an exception in Westfall for unconstitutional acts. The person filing the lawsuit would have to prove torture of a foreigner abroad was in fact prohibited by the Constitution. That would be one helluva hard sell.
But the Game’s Already Been Decided
And just to make this very clear, all the way back in 2012, Attorney General Eric Holder closed without charges the only two cases ever under investigation in connection with U.S. torture program. One case resulted in the 2002 death of an Afghan detainee at a secret CIA prison in Afghanistan, and the other the 2003 death of an Iraqi citizen in CIA custody at Abu Ghraib. Holder’s decision, said the New York Times, “eliminates the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the CIA”.
Obama also made clear the idea of suing the government, or anyone connected with torture, was a non-starter.
Long before throwing out the two cases noted above, way back in 2009 Obama said his desire was to look forward rather than conduct investigations that could alienate the intelligence community. “This is a time for reflection, not retribution,” Obama said in a statement, even as he noted torture was a “dark and painful chapter in our history.”
“It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Attorney General Holder said in a 2009 statement.
Obama officials also stated some five years ago that they would provide legal representation at no cost to CIA employees subjected to international tribunals or inquiries from Congress. They also said they would indemnify CIA staff against any financial judgments.
Short version for non-lawyers: if two presidents order it done, whatever is done is legal, and there is not a damn thing you can do about it. Thanks for playing and have a super day!
(I am not a lawyer and this is not legal advice)
Creative Commons photo courtesy shriekingtree on Flickr