Lawyers from the Department of Justice filed motions last week to prevent CIA Deputy Director Gina Haspel and other top officials from being forced to testify about the development of torture programs at Guantánamo Bay and various black sites. 

The lawsuit brought by the next of kin of a man killed in a CIA secret prison and others who were tortured was brought against two military psychologists, James Earl Mitchell and James “Bruce” Jessen.  This was compensation for developing a program described by the former acting General Counsel of the CIA as “sadistic and terrifying”, and which violated the laws of war and the Convention Against Torture. 

Mitchell Jessen & Associates received $81 million to develop the program, which was reverse-engineered for the military’s Survival, Evasion, Resistance, and Escape training, where pilots and others learned to resist interrogation under torture, primarily in the forms administered by America’s enemies during the Cold War and the Second World War. 

Any interrogation program developed from these techniques was certain to produce false confessions; numerous Americans--including Senator John McCain—said so.  Conversely, in the early days of GITMO, FBI interrogators complained that every time they were successful in building rapport with detainees (a process that is critical to obtaining truthful confessions) “the military would step in” and derail that process. 

Leaked memoranda confirmed that this was because Vice President Cheney and Secretary of Defense Donald Rumsfeld were determined to obtain confessions that implicated Iraq in the 9/11 attacks –which was entirely false.  This justified the creation of an interrogation that annulled any possibility of true confessions, since they were swamped by the false confessions that detainees would constantly produce in attempts to stop the torture.  It led to numerous wild goose chases that depleted the limited resources of the FBI.

Mohamedou Slahi, who was held for fourteen years at GITMO recently recounted on 60 Minutes that “they broke me. I told . . . the boss of my team, ‘You write anything and I sign it.” On that basis, Slahi confessed to a nonexistent plan to blow up the CN Tower in Toronto.  This was so blatantly untrue that the man charged with prosecuting Slahi before a military tribunal chose instead to resign.

While Slahi was later released, “high-value” detainees who will never see the light of day were subjected to considerably worse treatment.  Abu Zubayadah was subjected to waterboarding 83 times in a single month at black sites in Thailand supervised by Gina Haspel.  This technique, which involves actual asphyxiation and not merely simulated drowning, was the basis for the prosecution of numerous Japanese war criminals tried by the American authorities after the Second World War.  Zubaydah was later deemed not to have any useful intelligence. 

President Bush used the outlandish confessions obtained by torture (including that an Al-Qaeda sleeper cell would detonate a nuclear bomb in Europe were Osama bin Laden to be captured) to justify the torture program that Mitchell and Jessen sold to the Pentagon. Their work was also essential to sustaining the drive for war that allowed the United States to justify the spending of trillions of dollars (the Iraq War alone cost $2.7 trillion, which is almost three million expenditures of a million dollars) and the loss of hundreds of thousands of lives. 

The lawsuit brought against them is essential to ensuring that this will not happen again.  Mitchell and Jessen have never served a day in prison, nor have they been forced to return the $81 million the Pentagon paid them.  The CIA officials who provided the top-level oversight of torture were brought back into the Trump Administration.   Haspel was also responsible for the destruction of evidence of the CIA torture program, an action condemned by the Senate Intelligence Committee.

In attempting to stop Haspel from being deposed in the lawsuit, the Trump Administration has asserted the State Secret Privilege.  In effect, this is an admission that she possesses information that would put the national security of the United States at risk.  Is this because she was appointed in order to revive a program designed to produce false confessions?  Trump has floated the possibility of reviving torture programs, although he has yet to do so. 

Trump’s appointment of Haspel to a position of great responsibility (which pleased hardliners on Syrian intervention, such as Clinton partisan and former Deputy CIA Director Michael Morell), which occurred even as her testimony was sought in the torture lawsuits, is the clearest indication yet of the possibility that the Trump Administration will continue the path of endless war on false premises in the Middle East, which led Bush to a quagmire (in Iraq) and Obama to create devastation (in Libya).  Nothing would be more dangerous to the rule of law, and potentially more useful to the erection of a durable Perónist regime in the United States.

The same week that the 9th Circuit released its opinion denying a stay in Washington v. Trump (see last post below) that court released an opinion that disposed of a momentous case brought against the government. The fact that the stay order received so much attention and the final order in Saleh v. Bush says much about the failure of the judiciary to protect the rule of law in any meaningful way.

The plaintiff in Saleh was an Iraqi immigrant who, along with other members of a class who sought to bring claims against high officials of the Bush Administration for what they suffered during and after the American invasion. He claimed that Donald Rumsfeld and others had planned an illegal war and used the panic that ensued after the 9/11 attacks as an excuse to put the plan in motion. (There is ample evidence for this, but one need only point to the Bush Administration's consistent insinuation that Saddam Hussein sponsored the attacks.)

Despite the defendants admissions, and the reports of multiple official inquiries conducted into the illegality of the Iraq War that concluded that the United States had committed the "supreme international crime" of waging aggressive war, the case was dismissed. The plaintiffs were not even permitted to present the shocking evidence against Rumsfeld et al. that they had compiled. The courts concluded that former government officials were (or would be) immune from suits alleging that they had committed war crimes.

American courts have acknowledged that there are certain offences that are so serious that that those who commit them are the common enemies of mankind, who can be prosecuted in any court. The Nuremberg defence that a war criminal was "only following orders" and doing what was not illegal in a foreign country has been categorically rejected. However, the judiciary has not allowed suits against American war criminals to proceed; Saleh was dismissed because these former high officials were immune from prosecution in American courts. It is not the nature of the crimes that mattered, but the status of the defendants.

No American has been prosecuted for violating the most fundamental set of rights while conducting the "war on terror". Those who tortured detainees were immunized by act of Congress, while those who planned that torture (including Donald Rumsfeld, again) were protected with the doctrine of qualified immunity or Westfall Act (which require the implicit conclusion that planning war crimes was part of their official duties),while the whistleblowers who revealed these crimes were locked up.

As I detail in my book, wherever a possibility remained to bring actions against US officials, the courts went out of their way to tell the legislature how to take action to eliminate it. In Saleh, the opinion concludes--gratuitously--that Congress could immunize executive branch officials from all claims for violation of jus cogens norms (including torture, slavery, and genocide). (If this seems far-fetched, one should remember that in 2003 Congress passed the American Service-Members Protection Act, which authorizes the President of the United States to invade the Netherlands if any American is put on trial in the Hague for war crimes.)

The Saleh opinion was released on a Friday, so that it might pass through the news cycle unnoticed, while the (ultimately insignificant) denial of the stay in Washington v. Trump was released to great fanfare. The latter waxed poetic about the rule of law to no significant effect, while the former landed a muted but devastating blow. How can there be a rule of law if there is no forum where the executive can be held accountable?

The short answer is that without courts willing to hold the executive responsible for violations of the most fundamental rights, there is no rule of law (this is my book's main argument, by the way). This really should surprise anyone familiar with the history of our constitutional tradition, which emerged as a response to the argument that no one had the right to hold the executive accountable. The world's leading human rights lawyer (Geoffrey Robertson) detailed this history in The Tyrannicide Brief. As every schoolchild used to know, King Charles I, when put on trial, spoke only once, at the outset of the proceedings. He began his infamous speech by challenging the court's power to judge him:

"I would know by what power I am called hither ... I would know by what authority, I mean lawful."

The only answer to this question is the rule of law. If governments are permitted to re-empower the executive to plead in the same manner as Charles I and the defendants at Nuremberg, we have abandoned the idea of a government of laws, and not of men. One might as well allow the president to wear a crown, or let his assistants carry fasces.