War Without End

Marcy Wheeler hosted a panel on torture at the AFN conference featuring Rep. Jerry Nadler and Christopher Anders of the ACLU, in which Nadler set forth a couple of ideas that are illuminating about the thinking among political players on the subject.

Marcy writes about one of them here:

Yesterday, Jerrold Nadler announced he will hold a hearing on state secrets on Thursday.

Congressman Jerrold Nadler (NY-08), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, will chair a legislative hearing on H. R. 984, the State Secret Protection Act of 2009, his bill to reform the state secret privilege. This hearing will examine the standard of review for what qualifies as a state secret and how best this privilege should be reformed. The hearing will take place on Thursday, June 4th at 2:00pm in Rayburn House Office Building, Room 2141, Washington, D.C.

The state secret privilege allows the government to withhold evidence in litigation if its disclosure would harm national security. The purpose of the privilege is to protect legitimate state secrets; but if not properly policed, it can be abused to conceal embarrassing or unlawful conduct whose disclosure poses no genuine threat to national security. Nadler's bipartisan bill, the State Secret Protection Act of 2009, co-sponsored by Rep. Thomas Petri (WI-6), would ensure meaningful judicial review of the privilege and prevent premature dismissal of claims. The bill aims to curb abuse of the privilege while protecting valid state secrets.

As it happens, at the same time they announced this, Nadler was speaking on a panel with me about accountability for torture (I'm looking for video--but it may take a while to find it). And he focused closely on state secrets.

Interestingly, he was speaking of state secrets as a means of accountability for not just torture but (obviously) illegal wiretapping.

Mind you, Nadler is also pushing for an independent prosecutor on torture, so he's not proposing lawsuits as the sole means for accountability. But he's thinking of it as a means for accountability.

It seems there are a few problems with that. First, timing. Yes, if state secrets were changed, Binyam Mohamad's suits could move forward. But for others, a lawsuit would just begin to wend its ways through the courts, but take years and years to resolve.

Furthermore, it's not just state secrets that protects the wrong-doers. It's also protections of federal employees from suit. While a lawsuit might expose the wrong-doing of the Bush Administration, it's not going to land Dick Cheney in jail.

Nadler is a stalwart fighter of the good fight on these issues, so this isn't critical of him. It seemed to me to be a reluctant acceptance that the only place where we can probably expect any kind of accountability --- and clearly not any kind of criminal liability --- is in the civil courts. It's a damning admission of the uselessness of the congress in these matters but I think it's sadly realistic.

I was also struck by Nadler's commentary about the prospect of preventive detention. As a civil libertarian he is obviously not in favor of such a thing, but his solution was somehat odd. He claimed that the Guantanamo prisoners should be considered POWs, even though they weren't captured wearing a uiform, which at first blush sounds reasonable. After all, if they are captured on a battlefield shooting at soldiers in what both sides consider a war, they should be prisoners of war and according to the Geneva Conventions could be held for the duration.

The problem is that there's no mechanism for "winning" this war --- or surrendering. If bin Laden emerged from a "spidey hole" tomorrow, it would be meaningless for this purpose. There's no land to occupy and no one with whom to negotiate a settlement. We could just theoretically declare the "war" to be over, but I would guess that's about as likely as declaring that Swedish is the new official language of the US. All of this just adds up to POW status being indefinite detention by other means.

It's a thorny problem no matter how you look at it, unless the government just simply decides to take their chances that these people can be convicted before an American jury, which if the recent trial of the clearly tortured Jose Padilla is any example, shouldn't be that difficult. My suspicion is that most officials are more afraid of what will come out in a trial rather than the outcome. In Nadler's case, that clearly isn't the aim, but legalizing the prisoner's status to conform to the Geneva Conventions can't solve the problem if the "war" has no mechanism for conclusion. Indeed, the one thing such a thing will do is legalize the notion that the country is permanently at war. And when you think about it, hasn't that been true pretty much since WWII?

And that may be the biggest elephant in the room of all and the one thing nobody wants to talk about --- can America not be at war?

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