Getting Away With Torture

DonkeyHotey

Jose Padilla, an American citizen, was arrested in 2002, at Chicago’s O’Hare International Airport on suspicion of plotting to detonate a dirty bomb.  He was designated by President Bush as an "enemy combatant," denied a civilian trial, and held in a military prison for three-and-a-half years where he was tortured.  As an editorial in the New York Times states:

[He] was denied contact with his lawyer, his family or anyone else outside the military brig for almost two years and kept in detention for almost four. His jailers made death threats, shackled him for hours, forced him into painful stress positions, subjected him to noxious fumes that hurt his eyes and nose and deafening noises at all hours, denied him care for serious illness and more.

Padilla was eventually tried in federal court on criminal conspiracy charges and found guilty in 2007 for conspiring to kill people in an overseas jihad and to fund and support overseas terrorism. He was neither charged or convicted of planning to detonate a dirty bomb. He was sentenced to 17 years and four months in prison.

Padilla sued John Yoo, the former Bush Administration official who authored the infamous torture memos. (Padilla sought damages of $1.)   In case you've forgotten:

A Yoo memo from 2001 advised that the military could use “any means necessary” to hold terror suspects.

A 2002 memo to then-White House Counsel Alberto Gonzales advised that treatment of suspected terrorists was torture only if it caused pain levels equivalent to “organ failure, impairment of bodily function or even death.”

Yoo also advised that the president might have the constitutional power to allow torturing enemy combatants.

Most famously, Yoo was the principal author of a memo sent to the CIA in August 2002 authorizing “waterboarding,” in which water is poured over the face of a bound detainee and simulates drowning.

The Ninth Circuit reversed a 2009 ruling by federal district court judge who had held that the lawsuit could go forward.  According to the Ninth Circuit, Yoo was not personally liable because "regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was 'not sufficiently clear that every reasonable official would have understood that what he was doing violated' [Padilla's] rights."

The Court assumed that Padilla was tortured but found that Yoo had qualified immunity for two reasons:

First, . . . it was not “beyond debate” at that time that Padilla .   — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal.

Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

This nearly insurmountable burden, of having to establish that a government official's violation of a citizens rights was "beyond debate" stems from the U.S. Supreme Court's decision last year, in Ashcroft v. Al-Kidd.  The Times explains why this standard is unworkable:

The Bush administration manufactured both “debates” — about torture and enemy combatants. Any future government can rely on this precedent to pull the same stunt as cover for some other outrage.

By using the “enemy combatant” category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.

Yoo, minimizing his role as limited to providing "legal advice that the Constitution allows the military detention of Americans who join al Qaeda," complains in the Wall Street Journal that the Obama Administration failed to defend him in the lawsuit.  He is concerned that "worrying about future lawsuits will distort official decision-making, which should balance the costs and benefits to the national interest and not worry about personal liability."

As an amicus brief filed by law professors explained, “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

As the Times concludes, the Ninth Circuit was wrong to "dwell on whether Mr. Padilla’s mistreatment was torture. Even if somehow it did not qualify, its cruel, inhumane and shocking nature badly violated his rights as a citizen — and international law on the treatment of detainees. Even at the time, the issue was beyond debate, and Mr. Yoo should have known that."