Democracy Gone Astray

Democracy, being a human construct, needs to be thought of as directionality rather than an object. As such, to understand it requires not so much a description of existing structures and/or other related phenomena but a declaration of intentionality.
This blog aims at creating labeled lists of published infringements of such intentionality, of points in time where democracy strays from its intended directionality. In addition to outright infringements, this blog also collects important contemporary information and/or discussions that impact our socio-political landscape.

All the posts here were published in the electronic media – main-stream as well as fringe, and maintain links to the original texts.

[NOTE: Due to changes I haven't caught on time in the blogging software, all of the 'Original Article' links were nullified between September 11, 2012 and December 11, 2012. My apologies.]

Friday, September 09, 2011

Torture and the Abuse of Executive Power

The Obama administration is trying to quash court cases against former secretary of defence Donald Rumsfeld.


In a system based on checks and balances, the courts are the last refuge for human rights –especially when abuse comes at the hands of the executive branch of government. But if the U.S. government had its way, citizens’ claims against former U.S. secretary of defence Donald Rumsfeld for authorizing their torture would never make it to court. Under the Obama administration, which is inexplicably defending Rumsfeld in a series of torture cases, the government has unleashed its full arsenal of aggressive and strained defences to cut these claims short, and to stop the plaintiffs from trying to prove their cases. Like the Bush administration before it, the Obama administration is using some of the very checks-and-balances principles that were designed to protect individual liberties and human rights to attack them, instead. The approach turns our system of checks and balances on its head.



The clear continuity in Obama and Bush's counter-terrorism policies belie Obama's mantra of change. Learn more here.



But one influential court recently pushed back. Just this month, a panel of judges on the United States Court of Appeals for the Seventh Circuit ruled, by a vote of two to one, that two U.S. citizens can proceed with their torture case against Rumsfeld. In so ruling, the court rejected the government’s tired defences based on separation of powers and the proper role of the judiciary in matters of war, national security, and foreign affairs. It also rejected the government’s aggressive arguments to cut off access to the courts when plaintiffs sue high-level government officials for human-rights abuses. The case marks a significant victory for the plaintiffs, for the protection of human rights in U.S. courts, and for the rule of law.

The case, Vance vs. Rumsfeld, arose out of the fact that U.S. military authorities in Iraq tortured two U.S. citizens. The plaintiffs, Vance and Ertel, worked for a privately owned Iraqi security company called Shield Group Security. After observing suspicious activities by the company, Vance and Ertel reported to the FBI that U.S. and Iraqi government officials, and others closely associated with Shield Group Security, were involved in illegal arms trading, stockpiling of weapons, and bribery. Shield Group Security eventually confiscated Vance and Ertel’s credentials, effectively trapping them inside the firm’s compound in the Red Zone.

U.S. forces took Vance and Ertel from the firm’s compound into military custody, first to a military site in Baghdad and later to Camp Cropper, a U.S. military facility near Baghdad International Airport. The military held Vance and Ertel incommunicado, in solitary confinement, and subjected them to physical and psychological torture for the duration of their detention – three months for Vance and six weeks for Ertel. The military released them, without explanation, at Baghdad International Airport. They were never charged with any crime or designated as any kind of security threat.



Read more on Obama's disappointing national-security strategy here.



Vance and Ertel sued Rumsfeld for violating their constitutional rights by authorizing policies that led to their torture. They also said that he failed to act on both internal reports and well-publicized accusations of U.S. forces in Iraq torturing their detainees. The U.S. government, defending Rumsfeld, argued that the plaintiffs’ claims were too vague, that Rumsfeld enjoyed qualified immunity from suit, and that the courts had no business ruling on a matter so closely related to national security and foreign affairs.

The majority rightly rejected these arguments. Two judges wrote that Vance and Ertel sufficiently pleaded their case that Rumsfeld authorized policies, and ignored reports, of military torture. Those judges also wrote that Rumsfeld was not immune from suit, because the alleged policies were clear violations of the U.S. Constitution. Finally, they wrote that nothing prevents courts from hearing a claim of torture by U.S. citizens in a war zone. In fact, they noted, the government’s position would have the perverse result of preventing a U.S. citizen from suing any government actor for any constitutional violation in a war zone, up to and including cold-blooded murder. This, the court wrote, goes too far.

The ruling comes just weeks after a similar ruling by a federal judge in the District of Columbia. That case, Doe vs. Rumsfeld, arose out of a U.S. citizen’s eerily similar claims of torture at Camp Cropper. With these two rulings, the momentum seems to be with the plaintiffs – and with the rule of law.



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However, we haven’t yet seen the ends of the cases, and the government is sure to appeal these rulings. Furthermore, even if it ultimately loses at this stage, the government can still haul out even more aggressive and strained defences as the cases move forward – once again turning our system of checks and balances into a tool that prevents access to the courts.

Let’s hope the courts continue to reject this approach. After 10 years of the government trying to use checks and balances to attack access to the courts and human rights, it’s time for the courts to use them the way they were designed – to protect those very things.

Origin
Source: the Mark 

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