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American courts and the War on Terror.

In August a federal appeals court threw out a jury verdict in favor of three men—Suhail Al Shimari, Asa’ad Zuba’e, and Salah Al-Ejaili—who alleged that US military police and US contractors had conspired to torture them at Abu Ghraib in the months after the US invasion of Iraq. The jury had awarded the men $14 million each in damages in recognition of the severity of the abuse they suffered, and the appeals court had affirmed the jury’s verdict, but in June the Supreme Court overturned the key precedent on which the appeals court’s affirmation rested. That decision shut down one of the few remaining mechanisms for obtaining accountability for human rights abuses in American courts, and it made the appeals court’s dismissal of the Abu Ghraib case inevitable.

But the tragic truth is that the case was probably doomed from the start—not because there was insufficient evidence to support the men’s claims, but because since the September 2001 terrorist attacks the federal courts have expanded a slew of jurisdictional, remedial, and procedural doctrines that together all but guarantee that human rights cases implicating national security are dismissed without regard to the evidence. The Abu Ghraib case traveled a twisted path through the justice system, coming before the appeals court a remarkable six times over a period of 18 years. During that time, the courts confronted many other cases involving human rights abuses committed by US intelligence agencies, military personnel, or government contractors, and they relied on these doctrines to dismiss almost all of them. The Abu Ghraib case just took longer to meet the same fate.

To look back on these cases now, a quarter-century into what George W. Bush labeled the “war on terror,” is to survey a bleak and disheartening landscape of judicial abdication, with the courts almost invariably placing national security policies beyond the reach of the law and human rights victims outside the sphere of judicial protection. Lawsuits filed by men who were once imprisoned and tortured in the CIA’s black sites were thrown out on the theory that they couldn’t be litigated without the disclosure of state secrets. Challenges to mass surveillance programs were turned away for the same reason, or because the challengers’ inability to prove conclusively that their own communications would be swept up—a........

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