By David Cole
Originally posted May 9, 2016
Here is an excerpt:
Torture and cruel, inhuman, or degrading treatment, by contrast, are not committed to the political branches’ discretion. As the district court in Washington recognized, the very fact that Congress has made torture a crime and, under the Torture Victim Protection Act, grounds for a civil action for damages, refutes the notion that it is an inappropriate subject for courts. The fact that at the margins it may be difficult to decide whether particular actions constitute torture or cruel, inhuman, or degrading treatment does not make them “political questions.” Courts every day must decide whether particular conduct meets statutory definitions; that is what they do.
The district court in the CACI case ruled that because the military supervised the contractors at Abu Ghraib, the case must be dismissed as political because it would necessitate judicial intrusion on sensitive military judgments. But in doing so, it relied on cases that alleged only negligent action by contractors engaged in otherwise lawful and authorized military operations.
The article is here.