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Two New York Times Editorials...

Benjamin Wittes
Sunday, August 14, 2011, 12:32 PM
...and guess what? This post is not about any gross factual errors in either of them concerning the legality of detention. Perhaps that's because neither editorial really deals with the legality of detention, but never mind. I'll take factually decent New York Times editorials however I can get them.

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...and guess what? This post is not about any gross factual errors in either of them concerning the legality of detention. Perhaps that's because neither editorial really deals with the legality of detention, but never mind. I'll take factually decent New York Times editorials however I can get them. Both, however, provoke brief responses. The first of the two editorials deals with the dispute about drone strikes and civilian casualties, about which I commented two days ago. The Times, unsurprisingly, is less than credulous regarding the CIA's claims that it has killed zero civilians in Pakistan in drones strikes over the past more-than-a-year. "We find that hard to believe," the editorial notes. As my post the other day noted, I also find it hard to believe. But the Times's editorial makes an assumption that I do not make, one it doesn't quite come out and say but that it clearly implies. It suggests that the CIA is lying about its record:
It is true that the precision technology and American efforts have kept noncombatant deaths to a minimum. And in the remote region of North Waziristan, where most strikes occur, it is hard to find the truth. But no civilian casualties? The strikes have long been controversial in Pakistan, fueling anti-American sentiments. Washington’s refusal to be more transparent about the program is counterproductive. It should provide as much public detail as possible, including civilian casualties. . . . Drones are becoming central to modern warfare. The United States needs to be honest about what it can do and about its failings as well. It will have little ground on which to fault other countries for strikes that cause civilian casualties if it does not own up to its own errors, compensate victims’ families and keep working hard to make fewer errors in the future.
All of this seems to assume that the CIA knows it is killing a certain number of civilians and is covering it up, rather than, say, that it may have imperfect information about civilian deaths or that there may be legitimate disputes regarding whether certain individuals are civilians or combatants. The clear implication is that the Agency is not being "honest" about civilian deaths and that it is not "own[ing] up to its own errors." I doubt very much that the government is knowingly lying about a purportedly pristine record of drone strikes when nobody--at least nobody sane--actually expects a zero percent rate of collateral damage (and anyone who would demand such a pristine rate would never believe it if the CIA claims it). It seems to me far more likely, as I suggested the other day, that the CIA here is counting the number of confirmed civilian deaths--and getting zero--rather than counting the number of possible civilian deaths and getting a more substantial figure. I do think that's a mistake, if that's what's happening. The second Times editorial is a celebratory account of the recent 7th Circuit decision in Vance. Entitled "Holding Rumsfeld Accountable," it opens:
In a courageous decision last week, a federal appellate court ruled that two Americans who say they were tortured by American military forces in Iraq in 2006 can sue former Secretary of Defense Donald Rumsfeld and others for violating their constitutional rights.
And it unsurprisingly finds that:
The case is important because it makes clear — for the first time — that government officials can be held accountable for the intentional mistreatment of American citizens, even if that conduct happens in a war zone. (Sadly, there remains no accountability for the abuse, and torture, of foreigners by American jailers and interrogators, which Mr. Rumsfeld and President George W. Bush personally sanctioned.)
As I have said before, I have mixed feelings about these cases. It's very hard to argue--and I certainly wouldn't argue--that an American citizen who alleges that he was detained and mistreated by his own government should be without any judicial remedy. Yet I don't share the Times's apparent certainty that there is nothing whatsoever to concerns about judicialization of the conduct of a war. My earlier posting of a reader's mixed feelings on Vance and Doe has provoked interesting responses, both public and private. Adam Serwer posted these thoughts:
I have to admit I'm confused by this reader email posted by Ben Wittes on the recent Donald Rumsfeld torture civil cases, which he says "totally represents my own uncertainty" on the matter.
On the one hand, there are some pretty carefully-thought-out legal arguments as to why the lawsuits should be dismissed: Extension of Bivens is not favored, interference with military decision-making, etc. On the other hand, I can’t escape the feeling that this is one of those issues where there is a narrow chain of legal reasoning, each step of which is perfectly reasonable, leading you to a conclusion that seems completely untenable, namely that an American citizen who was detained arbitrarily, held incommunicado and without access to counsel for as long as 9 months, tortured, and then released without charges has no remedy. But I equally can’t escape the feeling that this is a case that is not about damages for a wronged individual but about exposing and relitigating the policies of the last administration–a feeling that is reinforced by the fact that based on the opinions it seems that the complaints in the two cases were largely identical in substantial portion.
It's clear that some of the people involved in the cases want to "relitigate the policies of the last administration," but there's nothing parochial about this. Republican presidential candidates have assembled rosters of legal and national security advisers who support torture, and without a court ruling determining that it's illegal to treat people in the manner alleged by the suits it's highly possible that a GOP win in 2012 could lead to the withdrawal of President Obama's executive order limiting U.S. personnel to the Army Field Manual on interrogations. There also wouldn't be any need to "religate" them if the Bush administration hadn't decided to get creative with the definition of torture in the first place. There's nothing mutually exclusive between the admirable goal of preventing torture from becoming U.S. policy, and the individual grievances of people who were arbitrarily detained and subject to abuse. Even if one opposes the policy views of the organizations backing these suits, one's personal dislike of those views should not inform one's opinion on whether or not American citizens tortured and detained by their own government should be entitled to recompense. The law doesn't proscribe an exact remedy for this, but I suspect that's because the Framers of the Constitution, in seeking to curtail the arbitrary power of government, could not have imagined that they were in any sense creating a legal loophole meant to be exploited by policymakers intent on abusing people just because they're suspected of crimes. Technically speaking, this might be an "extension" of Bivens, but it goes to the heart of the kind of government the United States was supposed to be. The ideological and policy goals of organizations like the ACLU shouldn't really matter here. What we're talking about is whether or not Americans abused by their own government have a right to a remedy. Everything else is irrelevant. And Gabor Rona of Human Rights First, in an email yesterday, told me that he "must take issue with your endorsement of your reader's ambivalence about suing Rumsfeld as an attempt to 'relitigate.' Fact is, you can't 'relitigate' that which has not yet been litigated." Both Rona and Serwer make good points. Yet, I confess, my mixed feelings remain--and my sympathy with all three points in my original reader's email remains as well. The doctrine here is fuzzy, and Rumseld has some strong defenses that may well prevail before the Supreme Court. At the same time, these defenses would, if they do prevail, lead to an absurdity. Yet, on the third hand, what will come from extending Bivens to these cases will, in the long-run, not prove salutary either. Rather, the litigation--relitigation or not--of these Bush-era cases will create real costs for war-fighting that are hard to envision prospectively but that will prove no less real for that fact.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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