Retired Supreme Court Justice John Paul Stevens, borrowing an idea from the belated government effort to make up for holding loyal Japanese-Americans in prison camps during World War II, on Monday proposed a similar approach to wrongs committed by government officials in carrying out the “war on terrorism.”
In a speech in Washington to a meeting of a group known as “Lawyers for Civil Justice,” Stevens said government officials should not be held personally accountable for actions taken in the belief that they were necessary to protect America. But the government itself should be held responsible, and pay something akin to “reparations,” he proposed.
He specifically mentioned a group of fifty-seven individuals now held at the U.S. military prison at Guantanamo Bay, Cuba, even though they long ago were cleared for release, and a group of nearly 200 individuals of Muslim faith or culture that the government rounded up and treated harshly right after the 9/11 terrorist attacks.
Rather than having lawsuits by those who were mistreated or abused by anti-terrorist policies, Stevens said, a system of compensation would be a better approach. The burden thus would fall on the government rather than any individuals involved in the misconduct, he said.
“If a policy of brutal interrogation of potential terrorists did violate their constitutional rights,” the retired jurist commented, “the doctrine of [senior official responsibility for subordinates’ action] should impose liability on the government for the wrongs committed by the agents. On the other hand, the law should also provide both those agents and their superiors with immunity from personal liability.”
Such immunity, he noted, is now available for criminal law prosecutors even when they take actions that violate constitutional rights. For superiors or agents involved in rights violations in wartime, Stevens said, “we should presume that they were motivated by their interest in protecting the public from have and not subject them to the risk of personal liability.”
Recalling the World War II internment of Japanese-Americans, beginning in 1942, Stevens said that was “a terrible mistake,” for which the government ultimately took “corrective action” through a payment system to individuals, with Congress’s approval.
Noting the claims of misconduct in reaction to the war-on-terrorism, Stevens said, “one day we may have the wisdom to change the law in two constructive ways” — requiring the government to compensate for constitutional wrongs, and immunizing both agents and superiors responsible for such wrongs.
Stevens was critical of Congress for having put up a series of legal barriers to President Obama’s attempts to close the detention prison at Guantanamo Bay by finding ways to release the remaining detainees there.
In discussing compensation for at least some of the fifty-seven who have been specifically cleared by the government for release yet remain detained, the retired Justice made clear that he was not advocating any payments to the handful of Guantanamo detainees who have been found guilty of war crimes by military tribunals there.
Although a significant number of former detainees at Guantanamo Bay have attempted to gain damage payments by filings lawsuit against Pentagon and other officials, those have been entirely unsuccessful. Similarly, individuals who were rounded up in anti-terrorism actions, within the U.S. as well as overseas, have done no better with lawsuits.
Stevens was critical of the Supreme Court’s decision in 2009 in the case of Ashcroft v. Iqbal, turning aside a constitutional challenge to former Attorney General John Ashcroft and former FBI director Robert Mueller for allegedly supervising the post-9/11 roundups in this country of 184 individuals suspected of actual or potential terrorist links.
Although he said he remains convinced that the majority was wrong in that decision, he said that the ruling “may represent an understandable reluctance to impose personal liability on dedicated public officials attempting to minimize the risk of another terrorist attack.”
The retired Justice did not mention it specifically in his speech, but he was a member of the Court at the time of that ruling, and joined in the dissent as the Justices split five-to-four.