THE TRUTH COMMISSSION DILEMMA

In most instances, the law allows one to plead inconsistent and alternative defenses. The Bush administration has used it to a fare-thee-well. For instance, 1) it denies that it tortured; 2) if it did torture, the torture was authorized by advice of counsel; 3) even if the advice of counsel was tainted, the torture was justified by the thousands of lives it saved; 4) and in any event, the Democrats are jointly responsible because they knew and acquiesced in the mistreatment of detainees. The latter accusation is apt to keep the issue burning indefinitely and fires the demand for the further release of photos, documents and an independent "truth commission". It certainly detracts from the more important crises facing the country. What Nancy Pelosi knew and when she knew it hardly stems the flood of foreclosures, and whether she knew and failed to complain doesn't quite equate with actually authorizing and directly ordering torture. Somehow the Republicans see no inconsistency in claiming that the Bush administration did nothing wrong in their treatment of detainees, BUT Nancy Pelosi knew what they were doing and failed to complain or take steps to stop it!

As a result, the current administration and the country face a dilemma. The release of more photos and further evidence of prisoner abuse is certain to arouse our enemies and increase their recruitments. The failure to do so runs contrary to the President's commitment to transparency and results in concealing what may actually turn out to be war crimes. Some suggest it is the Pentagon Papers redux----that unless some real and imminent threat can be established the First Amendment trumps hypothetical harm---no matter how likely it is to occur. Despite the denials by the Bush administration, by now the country knows that acts of torture were committed against detainees. If the purpose of a commission is to determine the extent of the torture and who authorized or directed it, I think that merely serves to lay political blame and would not be warranted with so many other issues facing the country.

On the other hand, if such a commission, independent counsel or grand jury is created with the expectation and purpose that it might recommend criminal prosecution or other sanctions, to me that would be a worthwhile purpose. I understand the President's concerns about looking back rather than going forward and that such an investigation and possible indictments might appear to be viewed as politically motivated. But we criticized the previous administration for using the Justice Department for political purposes, can we now justify failing to use it for the same reasons, although conceding the current motives are laudable while the past were not. Admittedly, indicting and trying high level officials of the opposition party, particularly for such high crimes, is a wrenching prospect and establishes a dangerous precedent. The questions are:

What will it do to us as a nation if we pursue it? What will it say about us, if we do not?

OUTSOURCING TORTURE

Is there anything that will not be condoned in the name of fighting terrorism? Maher Arar, a dual citizen of both Canada and Syria, but a resident of Canada since a teenager, alleges that he was seized by representatives of the United States government at Kennedy Airport, held and then sent to Syria where he was interrogated and tortured. He was eventually released when it was determined that he was not a terrorist. Apparently no one now claims otherwise.

His suit against certain named U.S. officials for damages under what is known as the Bivens doctrine was dismissed on the grounds of "a special factor" urged by the government that the violation of his rights occurred "during efforts to protect national security and that affected foreign affairs", and that the judiciary was not the branch to balance individual rights against national security. (His lack of U.S. citizenship was not a basis for the dismissal.)

The judiciary was created, in part, to reign in abuses by the other branches if they violated the rights granted to individuals. Hopefully, we do not have to debate in this day and age, that persons here and everywhere have the right to be free from torture. Torture, although practiced in many places, is virtually forbidden everywhere and most certainly violates the Fifth Amendment, our laws and our treaties. So what is the balancing that must take place? Is the argument that forbidding torture or compensating someone who has been tortured under the auspices of or in complicity with our government may somehow run contrary to national security?
The judiciary has the role and duty of protecting constitutional rights during times of national crisis and war, even to the extent of limiting the power of the executive branch. In such times, the judiciary should be even more vigilant, because it is in such times that our rights are in the greatest jeopardy. President Truman's seizure of the steel mills during the Korean War (on the grounds that a strike would have affected the war effort) was prohibited by the Supreme Court noting that a president cannot elude the restrictions of the Constitution by the assertion of his military role. Likewise, the First Amendment trumped the government's efforts to block the publication of the Pentagon Papers despite the government's assertion of damage to the national security.
Mr. Arar has no other remedy other than his claim for damages. Congress has not explicitly denied the remedy under these circumstances, nor provided any alternative. The government in a formal submission to the United Nations stated that there is no justification or tolerance for torture. So the balancing, if indeed there is a need for it, has already been done. If we condone the outsourcing of torture and fail to provide a remedy for it, then we are no different than the suicide bombers, who also purport to act in furtherance of their foreign policy.
(I wish to disclose that it is my intention to join with other retired judges in filing an amici brief urging a reversal of the dismissal of Mr. Arar's case.)