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Best of The Streak: How Investigating Bush Administration War Crimes Could Save Taxpayers Money

As I wrote on Wednesday, there are already several lawsuits from torture victims pending against the United States, and some legal scholars predict many more to come. So what if an Obama-sponsored investigative commission set up a means for compensating torture victims? That could save the government a whole lot of money.

A slew of lawsuits isn’t hard to imagine. About 750 people have been detained as suspected terrorists at Guantanamo Bay. Thousands more have been held around the world. Many claim they were tortured, and we know from the Bush administration’s own documents that tactics such as waterboarding, stress positions, extreme hot and cold, blaring music and sleep deprivation, and sexual and religious humiliation were all among the tactics used to wring information out of them.

Although the Military Commissions Act tries to preclude lawsuits filed by enemy combatants, many of the people held were never determined to be enemy combatants, or were still held after they were cleared for release. Of the lawsuits already filed against US officials by detainees, none of them were ever deemed enemy combatants. The Second Circuit heard arguments in the case of Maher Arar this week, and lawyers on the other case (Rasul v. Rumsfeld) have asked the US Supreme Court for review. The court will consider the request when it meets on Friday.

Although all sorts of immunities protect US officials from wrongdoing on the job, there’s a strong argument to be made that torture can never be considered part of a government official’s job, so those immunities shouldn’t apply. And the Religious Freedom Restoration Act, which protects against violations of detainees’ religious rights, such as having their Koran flushed down the toilet or being forcibly shaven, is very broad. (That didn’t stop the DC Circuit from dismissing four British detainees’ claims under it earlier this year, though, as I’ve written about before.)

But as I was talking to Carolyn Patty Blum the other day, an emeritus law professor at Berkeley and consultant to the International Center for Transitional Justice, she mentioned that a commission set up to investigate torture and other abuses perpetrated by Bush officials could also recommend, in addition to prosecution, a means by which torture victims can be compensated. Even if Bush were to pardon himself and his officials, a topic of much recent discussion, that wouldn’t shield anybody from future civil lawsuits demanding monetary compensation. But a statute that set up an investigative commission that had the power to, among other things, recommend compensating victims of torture and arbitrary detention, could also protect the US government from some costly future litigation.

“If a commission led to the creation of some sort of process that allows people to clear their name and apply for some sort of monetary compensation for being arbitrarily detained, one of the benefits is it would foreclose the ability for people to pursue another remedy,” Blum explained. “That would be a net gain in terms of cost savings for the new administration.”

Although that’s not the primary reason why Obama should create an investigative commission — Scott Horton at Harper’s has made the case for one quite well — it’s yet another argument in its favor.

*Now that the roller coaster that was 2008 has come to an end, we thought it would be fun to look back at some of our most popular, thought-provoking and entertaining posts from The Streak over the past year. This post was chosen by TWI staff as one of the most memorable of 2008. *

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