Legal Commentary

Score One for the Semi-Autonomy of Law

By Jack M. Balkin

UPDATE: The long-awaited report by the CIA Inspector General completed in 2004 and kept secret since has now been released by the Administration. The memos former Vice President Cheney says demonstrate the efficacy of torture in eliciting information are also now available. Note the Cheney memos are heavily, heavily redacted and it is impossible to tell how the information they described was obtained from detainees.

Today?s news that the Attorney General has decided to appoint a prosecutor to investigate some of the most egregious acts of torture committed by the U.S. government after September 11 will I hope be greeted with some praise by the human rights community, and by the many Americans who have sought some accountability for the most notorious acts of abuse. To be sure, the prosecutorial hurdles in these cases remain substantial, so it is unclear what if anything will ultimately result. (Among many other things, years have passed since some of the most troubling detainee deaths in custody. A report I worked on a few years back reviewed thousands of pages of FOIA?d government documents and concluded that nearly 100 detainees had died in U.S. custody as of 2006, at least 8 of whom had been, by any definition, tortured to death.) It also remains unclear just what the scope of the investigation will be, what it might become, and what else might be done (outside the criminal justice system) to gain and assimilate lessons learned from U.S. detention and interrogation operations in recent years.

For these among other reasons, I think today?s announcement is better understood as a modest victory for the more general (call me quaint) notion that there remains a meaningful distinction between power politics and law. It may well be that the Administration will take at least some kind of political hit for the decision of its Attorney General. Could be the hit will be in lost votes on the Hill. (Ubiquitous health-care-negotiator Senator Grassley (R-IA) is among those who have been vocal in opposing further investigation.) Could be any impact will be tempered (for better or worse) by other, more pressing items on the Administration?s political agenda. Either way, given the President?s repeated statements following the election that he wished to look forward, not back, on questions of accountability for torture, it seems likely the President wouldn?t have picked just now, in the midst of the health care fight of the century, to go down this road if he could avoid it. As it turns out, though, today?s news suggests that it is possible to have a President who actually believes in the prosecutorial independence of the Attorney General. And an Attorney General who actually believes in the law. If reports are true, it?s one good step. We'll have to see what follows.

Full post as published by Balkinization on August 24, 2009 (boomark / email).