Federal court rules that 'even the president' can't legalize torture

In a major rebuke to post-9/11 Bush-era legal arguments regarding torture, the Fourth Circuit Court of Appeals unanimously ruled Friday that “even the president” doesn’t have the legal capability to “declare such conduct legal.” The ruling allows a lawsuit filed by the Center for Constitutional Rights, a progressive nonproft legal organization, against a military contractor for its role in the torture of prisoners at Abu Ghraib in Iraq, to continue after a lower court dismissed it last year, saying the definition of torture is too ambiguous.

The appeals court disagreed vehemently, with Judge Barbara Keenan writing in the opinion, “While executive officers can declare the military reasonableness of conduct amounting to torture, it is beyond the power of even the president to declare such conduct lawful.”

Now, “Today’s decision reaffirms the role of the courts to assess illegality, including torture, and we are optimistic this case will finally move forward and our clients will have their day in court,” CCR legal director Baher Azmy said in a statement.

In the early 2000s, a team of Bush Administration lawyers argued “that the president has supreme authority over the questioning of terrorist suspects, and can legally order interrogators to torture or commit other crimes against them,” according to a 2004 Associated Press report.

In a 2010 paper, University of Pennsylvania law professor Claire Finkelstein argued that the lawyers who originally argued the president can decide to legalize torture should be prosecuted. “The lawyers are accomplices because they aided in the commission of the prohibited act (torture) by encouraging, soliciting, or otherwise contributing to the act by giving it legal validation,” she wrote. “If you advise a client that an illegal act is legal, and you are a lawyer in a position of authority who has the power and ability to make such pronouncements, and, moreover, you do so with the purpose of promoting or facilitating the commission of the offense, there are arguably sufficient grounds for regarding you as an accomplice of those who commit the offense.”

Sam Stecklow is the Weekend Editor for Fusion.