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Jose Padilla Brings Torture to Trial — In These Times

Jose Padilla Brings Torture to Trial

Can a DOJ lawyer be held accountable for advocating the inhumane?

By Doug Cassel

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When on Jan. 22 a federal court judge sentenced Jose Padilla to 17 years in prison for conspiracy to commit terrorism, it was a one-day story. But, in fact, the Padilla case goes on.

Padilla, a U.S. citizen and former Chicago gang member, alleges that he was tortured during the more than three and a half years he spent behind bars at a Navy brig in South Carolina. He is now suing John Yoo, the former Justice Department lawyer who reportedly devised the legal theories to justify the interrogation techniques used against him.

While Padilla’s suit raises a number of constitutional claims—including that the military violated his rights to counsel and to exercise his Muslim religion—the heart of his argument is that Yoo gave legal advice to justify his torture, in violation of due process of law as guaranteed by the Fifth Amendment to the Constitution.

Padilla, who is separately appealing his recent conviction, asks the court to rule that his treatment violated the Constitution, and to order Yoo, now a law professor at the University of California at Berkeley, to pay him $1 in damages.

The suit raises important questions of law and fact. Are lawyers liable for giving bad legal advice to federal officials?

In August 2002, Yoo, then an attorney in the Justice Department’s Office of Legal Counsel, wrote a formal opinion letter advising that interrogation techniques are not torture unless they inflict pain equivalent to “organ failure, impairment of bodily function or even death.” The new head of the Office of Legal Counsel, Jack Goldsmith, later withdrew Yoo’s opinion.

Goldsmith, now a Harvard law professor, explains in his book, The Terror Presidency, that Yoo’s reasoning was “legally flawed” and “tendentious.” It seemed “more an exercise of sheer power than reasoned analysis.” Even so, was it the proximate cause of any mistreatment of Padilla?

However such questions are resolved, Padilla’s allegations of his treatment, if true, ought to shame a civilized society.

‘Measurably abnormal’

Padilla charges he was imprisoned in a seven-foot by nine-foot cell in the Navy brig in Charleston, S.C., for nearly four years. For the first 21 months, he says he was denied all contact with anyone outside the brig, including family and lawyers, leaving him with interrogators and guards as his only human contact.

He alleges he was allowed no watch or clock, nor any news about the outside world. The only window in his cell was blacked out. When he was allowed out of his cell, his eyes and ears were covered.

Periodically, he says, he was subjected to absolute light or darkness for periods in excess of 24 hours. He was subjected to extreme temperature variations in his cell, where his bed consisted of a cold steel slab with no mattress, pillow or blanket. He says brig guards and others deliberately banged on his walls and bars at all hours of the night. For hours at a time, he says guards kept him shackled and manacled, or forced him to sit or stand in uncomfortable and painful positions.

Worse, his interrogators allegedly threatened to cut him with a knife and pour alcohol in the wounds. He says they also threatened to kill him, or send him to a country where they said he would receive far worse treatment. Against his will, they allegedly administered chemicals, which Padilla believes were psychotropic drugs.

When his lawyers were finally allowed access to him, he was not permitted to tell them about prison conditions.

If Padilla’s allegations are true, they qualify as torture under international law: the intentional infliction of severe physical or mental pain for purposes such as interrogation. The U.N. Committee on Torture and the Inter-American Court of Human Rights have held that incommunicado detention—even for periods far shorter than Padilla endured—is torture. They have also ruled that combinations of sensory deprivation techniques amount to torture, as well.

According to Padilla’s complaint, a “substantial body of clinical literature and expert opinion … holds that restriction of environmental and social stimulation has a profoundly deleterious effect on mental functioning, and that even a few days of solitary confinement predictably causes brain patterns to become measurably abnormal.”

It would drive anyone mad.

Waging ‘lawfare’

Yoo has castigated Padilla and his lawyers at the Yale Law School clinic for waging “lawfare,” which Yoo calls “another dimension” of the terrorist war against the United States.

In a Jan. 16 op-ed in the Philadelphia Inquirer, Yoo complained that terrorists use cases like Padilla’s to press “novel theories that have failed at the ballot box.”

If their legal theories are novel, Yoo can thank himself: Never before has the Justice Department sanctioned prolonged, mind-altering brutality on a U.S. citizen.

Still, suing a government lawyer for rendering legal advice, no matter how injudicious, ought to give pause. Such lawsuits could deter creative thinking by attorneys trying to protect the public. If allowed at all, they should be confined to rare and extreme cases, such as Yoo’s torture memo.

There are limits on what advice lawyers may give. After World War II, German government lawyers who wrote memos and orders depriving Russian prisoners of war of their Geneva Conventions protections, and authorizing the forced disappearances of political prisoners, were convicted at Nuremberg. Would authorizing torture of prisoners have made them any less guilty?

Although the suit against Yoo does not seek to convict him of a crime, it does aim to hold him civilly liable—for a symbolic $1 in damages—not only for the torture, but also for his legal advice that allegedly led to violations of Padilla’s constitutional rights. Those include the rights to counsel, access to court, due process of law, freedom of religion, rights to information and association, and his rights to be free from inhumane conditions of confinement, cruel and unusual punishment, coercive interrogations and improper military detention.

In pressing these wide-ranging claims, Padilla’s lawyers face daunting legal obstacles. Unlike most damages suits for violations of basic rights, civil rights law does not authorize their lawsuit. By necessity, Padilla’s suit rests directly on the Constitution. While the Supreme Court has authorized suits for damages based solely on violations of the Constitution, it does so sparingly—when the violations would not otherwise be subject to judicial or effective oversight and, even then, only if no special factors weigh against the wisdom of creating a new cause of action.

Only one of Padilla’s claims—under the Eighth Amendment—has arguable Supreme Court precedent. Some claims may fail on the ground that they are subject to judicial oversight in the criminal proceedings against him. Others may be rejected because they deal with gray areas of national security law, where legal mistakes should not result in damages suits.

But Padilla should probably be allowed to try at least his core claims—that the torturous confinement and interrogation techniques violated his Fifth Amendment right to due process, and possibly his Eighth Amendment right not to be subjected to cruel and unusual punishment. To the extent the prosecution in his criminal trial did not rely on any coerced confession by Padilla, these alleged violations have not been subject to judicial oversight.

Curbing an imperial presidency

If Padilla overcomes this hurdle, others remain. Yoo may contend that he is entitled to absolute immunity, as are prosecutors when presenting their cases to a court. But Yoo more likely will be granted only the “qualified immunity” afforded to prosecutors when they advise police on interrogation techniques, or to the attorney general when he authorizes national security wiretaps without a judicial warrant.

If Yoo is granted qualified immunity, he can be held liable for his erroneous legal advice only if it violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” In this case, his legal advice plainly did: Yoo’s memo legally authorized torture.

But the issue is not so simple.

Yoo’s overriding legal rationale is that the president’s powers give him constitutional license to override any law—including laws against torture—if he deems it necessary to wage a war. The courts may thus need to consider whether any reasonable lawyer could advise that the Constitution allows the president to disregard all law during wartime.

Finally, the government might decide to assert the “state secrets” privilege to quash Padilla’s claims, on the ground that the claims cannot fairly be adjudicated without probing secret intelligence methods and communications.

Unless barred by the state secrets privilege, Padilla’s suit will likely break new ground. Far from a case of “lawfare,” it promises to strengthen the rule of law by clarifying whether and when government lawyers can be held accountable for ill-considered legal advice.

Doug Cassel is director of the Center for International Human Rights at Northwestern University School of Law and was a consultant to the lawyers for the prisoners in the Supreme Court cases.

Antiwar.com Blog · Warren Richey

Warren Richey, reporter for the Christian Science Monitor discusses the Jose Padilla case, Padilla’s $1.00 lawsuit against the Government, the government’s claim that none of his “clearly established rights” were violated, and the damage to Padilla’s psyche as the result of the torture he suffered at the hands of the U.S. military.

MP3 here. (23:41)

Warren Richey is a reporter for the Christian Science Monitor.

Glenn Greenwald – Political Blogs and Opinions – Salon

Michael Mukasey’s role in the Jose Padilla case

(updated below – Update II)

Bill Kristol claims to have learned that George Bush will nominate former federal Judge Michael Mukasey on Monday to be the next Attorney General. CNN now has a similar, though less definitive, report. While Kristol thinks the choice is a good one, many other right-wing Bush supporters do not, based on their hope for more partisan figures (such as Ted Olson), the childish concern that Chuck Schumer and Nan Aron approve of Mukasey, as well as some prior judicial rulings they dislike.

There is no question that Judge Mukasey, a Reagan appointee who served as the Chief Judge for the Southern District of New York before retiring recently, is close to the far right on the judicial spectrum. He undoubtedly holds many legal and political views which most Democrats would find objectionable, perhaps even intolerable. But that will be true of any nominee Bush selects, and it is true of the current Acting Attorney General, Paul Clement, who will remain in place if no nominee is confirmed.

I want to highlight one extremely relevant consideration concerning Judge Mukasey — the impressive role he played in presiding over the Jose Padilla case in its earliest stages. After Padilla was first detained in April 2002 and declared an “enemy combatant,” he was held incommunicado, denied all access to the outside the world, including counsel, and the Bush administration refused to charge him with any crimes. A lawsuit was filed on Padilla’s behalf by a New York criminal defense lawyer, Donna Newman, demanding that Padilla be accorded the right to petition for habeas corpus and that, first, he be allowed access to a lawyer. That lawsuit was assigned to Judge Mukasey, which almost certainly made the Bush DOJ happy.

But any such happiness proved to be unwarranted. Judge Mukasey repeatedly defied the demands of the Bush administration, ruled against them, excoriated them on multiple occasions for failing to comply with his legally issued orders, and ruled that Padilla was entitled to contest the factual claims of the government and to have access to lawyers. He issued these rulings in 2002 and 2003, when virtually nobody was defying the Bush administration on anything, let alone on assertions of executive power to combat the Terrorists. And he made these rulings in the face of what was became the standard Bush claim that unless there was complete acquiescence to all claimed powers by the President, a Terrorist attack would occur and the blood would be on the hands of those who impeded the President.

In demanding that Padilla be denied access to lawyers, the Bush administration argued that access to counsel would destroy its ability to interrogate Padilla, and that “enemy combatants” had no such rights. Mukasey emphatically rejected both contentions, concluding in his first decision (.pdf) in December, 2002:

Even giving substantial weight, as I do, to the President’s statement in the June 9 Order that Padilla is “a continuing, present and grave danger to the national security of the United States” and that his detention “is necessary to prevent him from siding with al Qaeda in its efforts to attack the United States,” there has been no fact presented to me that shows that the source of that danger is the possibility that Padilla will transmit information to others through his lawyers. By contrast, Padilla’s statutorily granted right to present facts to the court in connection with this petition will be destroyed utterly if he is not allowed to consult with counsel. On the facts presented in this case, the balance weighs heavily in Padilla’s favor.

After Judge Mukasey ordered the Bush administration to allow Padilla access to lawyers, and instructed them to negotiate the terms of that access with the lawyers who filed the lawsuit, the Bush DOJ simply refused to do so. They thereafter demanded that Judge Mukasey re-consider his decision, claiming that they understood his order as a mere “invitation to dialogue” about whether a voluntary agreement could be reached. In March of 2003 — two weeks before the invasion of Iraq began — Mukasey refused the re-consideration request, re-affirmed Padilla’s right to counsel, and underscored his anger with the administration’s failure to comply with his order:

Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further “dialogue” about whether he will be permitted to do so. It is a ruling — a determination — that he will be permitted to do so.

Mukasey re-affirmed his ruling while noting that Bush administration “is none too subtle in cautioning this court in going too far in the protection of this detainee’s rights, suggesting at one point that permitting Padilla to consult with a lawyer ‘risks that plans for future attacks will go undetected.'” Whatever else may be true about him, then, Judge Mukasey was more than willing to defy the Bush administration and not be intimidated by threats that enforcing the rule of law would prevent the President from stopping the Terrorists. And he did so at a time when most people, including those who were natural political opponents of the President, were petrified of doing the same. Even more perverse than its argument that national security would be jeopardized if Padilla were allowed access to counsel, the Bush administration also argued that it merely need submit “some evidence” to justify Padilla’s detention, and that Padilla had no right to review that evidence or have any opportunity to contest it. Judge Mukasey, however, found the “evidence” submitted by the administration (in the form of a Declaration from Pentagon official Michael Mobbs) to be woefully vague and worthless and demanded that they provide more specifics. Once the administration did so, Mukasey ruled that the Due Process Clause entitled Padilla to review the evidence (at least the unclassified portions of it) and to contest its validity:

Padilla must have the opportunity to present evidence that undermines the reliability of the Mobbs Declaration. Furthermore, inasmuch as Padilla has not yet been heard at all on the subject, he is entitled to present evidence that conflicts with what is set forth in the Mobbs Declaration, and to have that evidence considered alongside the Mobbs Declaration. . . . [U]nless [Padilla] has the opportunity to make a submission, this court cannot do what the applicable statutes and the Due Process Clause require it to do: confirm what frankly appears likely from the Mobbs Declaration but cannot be certain if based only on the Mobbs Declaration — that Padilla’s detention is not arbitrary, and that, because his detention is not arbitrary, the President is exercising a power vouchsafed to him by the Constitution. As set forth in the Opinion, because the only practicable way to present evidence, if he has any and chooses to do so, is through counsel, he must be permitted to consult with counsel.

Mukasey thus rejected the notion that Padilla’s detention could be justified based on the unchecked, unchallengeable, secret assertions of the President. Mukasey’s actions were notable because they came at a time when there were virtually no other limits being placed on the President’s power. Stalwart rule of law defender Bruce Fein, in a December 2002 Op-Ed in The Washington Times, called Mukasey’s decision a “narrow, prudent, and impeccable decision” and said it “sets a standard to which the wise and honest jurist should repair.”

Judge Mukasey’s respect for the Constitution and the rule of law should not be overstated. As part of his ruling that Padilla was entitled to counsel and to contest the factual accusations against him, Mukasey also ruled, very dubiously, that President Bush had the authority to detain American citizens, even those detained on U.S. soil, as “enemy combatants,” and that they need not be charged with any crimes. He thus rejected Padilla’s claim that, as a U.S. citizen, the Constitution barred his incarceration without criminal charges being brought and a conviction obtained in a court of law.

That ruling by Mukasey was resoundingly reversed by the Second Circuit on appeal (.pdf), which held that “the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.” Mukasey’s ruling that Bush has the power to detain American citizens as “enemy combatants” was also rejected by the Bush43-appointed federal judge in South Carolina (.pdf) to whom the Supreme Court transferred the Padilla case (though Mukasey’s ruling was adopted by a far right Fourth Circuit panel on appeal).

It was that question — whether the President can constitutionally detain U.S. citizens arrested on U.S. soil as “enemy combatants” — which the Supreme Court was set to resolve when the administration finally charged Padilla with crimes, transferred him to a criminal court, and argued (successfully) that the case was therefore moot, thus leaving standing the Fourth Circuit ruling that the President possesses this power. If Mukasey is the nominee, he should certainly be questioned aggressively about whether he believes that the President does have this authority and whether he would intend as Attorney General to defend that authority if it were exercised again.

But it is true is that Mukasey’s history — unlike that of, say, Ted Olson — has been that of an independent-minded (albeit quite conservative) judge, not a political hack at the center of partisan wars. He has — at least at times — displayed an impressive allegiance to the rule of law and constitutional principles over fealty to claims of unlimited presidential power.

Mukasey is very smart and independent, not part of the Bush political circle, and — at least compared to the array of nightmarish alternatives — it is hard to see him becoming a subservient tool of the White House. Far and away, independence from the White House is the attribute most needed for the next Attorney General — someone who will enforce the rule of law even when it undermines the political interests, or even the legal interests, of top Bush officials.

None of this is to say that Mukasey should be confirmed as Attorney General if, as appears to be the case, he is the nominee. There is a long record of rulings that very well may constitute potent grounds for opposing him. He published a recent Op-Ed in the Wall St. Journal on the question of legal rights for terrorist suspects which was reasonable on some points though ultimately inconclusive on the central questions. And, as indicated, his ruling that Bush has the power to detain Americans as “enemy combtatants” is unquestionably disturbing. All of that may provide ample ground for opposition.

Nonetheless, in presiding over the Padilla case, Mukasey — at the height of almost universal deference to the Leader — displayed a willingness to defy the President and reject assertions of lawless and unconstitutional powers, and to refuse to be intimidated by exploitative claims of the Terrorist threat. That independence and strength of conviction, displayed in 2002 and 2003, is far greater than most political figures are willing to exhibit even today. It is hard to imagine any other potential Bush nominee for Attorney General who has displayed these vital attributes.

UPDATE: Criminal defense lawyer Jeralyn Merritt, a tenacious advocate for defendants’ rights, says Mukasey is “independent-minded, extremely experienced and smart,” and that although he is “far too supportive of the Patriot Act and too close to Rudy Giuliani for comfort, he doesn’t run rough-shod over defendants’ rights.”

Think Progress notes that Mukasey (like Ted Olson) is an advisor to, and supporter of, the Giuliani campaign (a disturbing fact, though an unsurprising one, given that they are all long-standing members of New York’s GOP legal circle). AP is reporting that while some conservatives are supportive, many conservatives are already expressing opposition to Mukasey’s nomination.

UPDATE II: Several weeks ago, looseheadprop — a liberal lawyer at FDL who has practiced for some time in New York — suggested Judge Mukasey as a “consensus AG pick,” noting that “[h]is reputation is that of a man who follows the law, even if he does not agree with it,” and that Padilla lawyer Donna Newman said of him: “I admire him greatly.” The whole post is quite informative and worth reading.

On a different note, the ACLU of Southern California is hosting a telephone conference call event tomorrow for Constitution Day, where I will speak on the Constitution, be interviewed by Cenk Uygur, and participate in an audience discussion. It begins at 7:00 pm Eastern. Event details and RSVP information can be found here.

— Glenn Greenwald

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 Six Years of 9/11 as a License to Kill – CommonDreams.org

Six Years of 9/11 as a License to Kill

by Norman Solomon

It evokes a tragedy that marks an epoch. From the outset, the warfare state has exploited “9/11,” a label at once too facile and too laden with historic weight — giving further power to the tacit political axiom that perception is reality.

Often it seems that media coverage is all about perception, especially when the underlying agendas are wired into huge profits and geopolitical leverage. If you associate a Big Mac or a Whopper with a happy meal or some other kind of great time, you’re more likely to buy it. If you connect 9/11 with a need for taking military action and curtailing civil liberties, you’re more likely to buy what the purveyors of war and authoritarian government have been selling for the past half-dozen years.

“Sept. 11 changed everything” became a sudden cliche in news media. Words are supposed to mean something, and those words were — and are — preposterous. They speak of a USA enthralled with itself while reducing the rest of the world (its oceans and valleys and mountains and peoples) to little more than an extensive mirror to help us reflect on our centrality to the world. In an individual, we call that narcissism. In the nexus of media and politics, all too often, it’s called “patriotism.”

What happened on Sept. 11, 2001, was extraordinary and horrible by any measure. And certainly a crime against humanity. At the same time, it was a grisly addition to a history of human experience that has often included many thousands killed, en masse, by inhuman human choice. It is simply and complexly a factual matter that the U.S. government has participated in outright mass murders directly — in, for example, Vietnam, Laos, Cambodia, Panama, Yugoslavia, Afghanistan, Iraq — and less directly, through aid to armies terrorizing civilians in Nicaragua, Angola, East Timor and many other countries.

The news media claim to be providing context. But whose? Overall, the context of Uncle Sam in the more perverse and narcissistic aspects of his policy personality. The hypocrisies of claims about moral precepts and universal principles go beyond the mere insistence that some others “do as we say, not as we do.” What gets said, repeated and forgotten sets up kaleidoscope patterns that can be adjusted to serve the self-centered mega-institutions reliably fixated on maintaining their own dominance.

Media manifestations of these patterns are frequently a mess of contradictions so extreme that they can only be held together with the power of ownership, advertising and underwriting structures — along with notable assists from government agencies that dispense regulatory favors and myriad pressure to serve what might today be called a military-industrial-media complex. Our contact with the world is filtered through the mesh of mass media to such a great extent that the mesh itself becomes the fabric of power.

The most repetitious lessons of 9/11 — received and propagated by the vast preponderance of U.S. news media — have to do with the terribly asymmetrical importance of grief and of moral responsibility. Our nation is so righteous that we are trained to ask for whom the bell tolls. Rendered as implicitly divisible, humanity is fractionated as seen through red-white-and-blue windows on the world.

Posing outside cycles of violence and victims who victimize, the dominant vision of Pax Americana has no more use now than it did six years ago for W.H. Auden’s observation: “Those to whom evil is done / Do evil in return.”

We ought to know. But we Americans are too smart for that.

The U.S. media tell us so.
Norman Solomon’s new book “Made Love, Got War: Close Encounters with America’s Warfare State” has just come off the press. For more information, go to: www.MadeLoveGotWar.com. The documentary film “War Made Easy: How Presidents and Pundits Keep Spinning Us to Death” is based on Norman Solomon’s book of the same title. For information about the full-length movie, narrated by Sean Penn and produced by the Media Education Foundation, go to: www.WarMadeEasyTheMovie.org

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