IMPUNITY OR ACCOUNTABILITY

Eleven members of the United States Court of Appeals for the Ninth Circuit based in San Francisco are scheduled to hear legal arguments on Tuesday in a lawsuit involving serious allegations of torture. The Bush administration tried to block the suit as part of its campaign to close off all avenues of accountability for its lawless detention policies. This time, President Obama's lawyers will be making the same extravagant claims of secrecy and executive power.

 

The immediate question is whether people who were harmed by Mr. Bush's policies — in this case five victims of "extraordinary rendition" and torture — will be allowed their day in court or silenced before any evidence is taken. The court must resist the Obama team's invitation to sacrifice democratic principles to avoid a politically embarrassing airing of policies and decisions that Mr. Obama himself has repeatedly condemned.

 

The administration sought the en banc proceeding before the expanded bench after a ruling by a three-judge panel last April rejected the argument that the executive branch is entitled to have lawsuits shut down whenever it makes a blanket claim of national security. The government's theory, the ruling noted, would "effectively cordon off all secret actions from judicial scrutiny, immunizing the C.I.A. and its partners from the demands and limits of the law."

 

The court can do a major public service by firmly seconding the April ruling and letting the case go forward. Unless courts declare the conduct in question illegal, nothing will prevent another administration from arguing, just as the last one did, that kidnapping, secret detention, abuse and even torture were a perfectly acceptable response to national security concerns.

 

In case after case, the Obama administration has echoed — and in some instances exceeded — Bush-era claims designed to cover up despicable acts committed in the name of fighting terrorism and avoiding accountability for the responsible officials. Last month, for example, the Justice Department filed a brief in the Supreme Court opposing review of another lawsuit by torture victims. The brief argued that there was no basis for claims by former detainees at Guantánamo Bay, since at the time of their detention, between 2002 and 2004, it was not firmly established that their treatment was illegal.

 

That would be an outrageous argument coming from any administration. But it is even more disappointing coming from one that has said torture is clearly illegal. "The Bush administration constructed a legal framework for torture," observes Jameel Jaffer, who leads the American Civil Liberties Union's National Security Project, "but the Obama administration is constructing a legal framework for impunity."

 

It is up to the courts to fulfill their constitutional role by checking executive power and providing accountability. The precedent set by the federal Court of Appeals for the Ninth Circuit will be critical.