Three weeks ago, Jose Padilla, a US citizen and a notorious victim of torture by representatives of his own government, had a courtroom door shut firmly in his face, when the Ninth Circuit Court of Appeals, in California, reversed a lower court decision (PDF) allowing Padilla — held as an “enemy combatant” in a military brig on the US mainland from 2002 to 2005, and isolated and tortured so severely that he lost his mind — to pursue a lawsuit against John Yoo.
A law professor at UC Berkeley, Yoo worked for the Justice Department’s Office of Legal Counsel (OLC) in the early years of the “war on terror,” as part of Dick Cheney’s inner circle of lawyers pushing to eradicate existing laws preventing arbitary detention and torture, and it was for the OLC — which is supposed to provide impartial legal advice to the executive branch — that he wrote a notorious series of memos — the “torture memos” — in which he cynically attempted to redefine torture so that it could be used by the CIA. This was a decision that not only led to the CIA torturing prisoners in its own secret prisons, in Thailand, Poland, Romania, Lithuania and Morocco, but also infected the whole of the US military. Not uncoincidentally, Yoo’s boss at the OLC was Jay S. Bybee, who signed off on the “torture memos,” and is now a judge on — wait for it! — the Ninth Circuit Court of Appeals.
Analyzing this scandalous denial of justice (and also the D.C. Circuit Court’s equally unjust interventions to gut habeas corpus of all meaning for the Guantanamo prisoners, most recently in the case of Adnan Farhan Abdul Latif, a Yemeni whose story I covered here), Scott Horton of Harper’s Magazine wrote a powerful article in which, after noting that “one of the lasting challenges to America’s federal judiciary will be addressing American complicity in the tortures and disappearances of the past ten years,” he explained that Padilla v. Yoo and Latif v. Obama “show us how judicial panels are tackling these issues: by shielding federal officials and their contractors from liability, and even by glorifying the fruits of their dark arts. In the process, legal prohibitions on torture are being destroyed through secrecy and legal sleight of hand, and our justice system is being distorted and undermined.”
In looking at the Padilla case, submitted by Padilla’s mother in January 2008, Horton noted that she “argued that Padilla was tortured while in US custody as a result of Yoo’s advice,” and accurately described that as “a claim that seems pretty much unassailable, and that had to be accepted as true for purposes of the preliminary rulings.”
In June 2009, District Judge Jeffrey S. White had declined to dismiss the civil suit against John Yoo (PDF), but now, nearly three years later, as Horton noted, the Ninth Circuit’s ruling “has left international law scholars dumbstruck.” As he described it:
The Ninth Circuit granted Yoo immunity, concluding that the law surrounding torture was so muddled when he dispensed his advice that he should be given the benefit of the doubt. The best authority the judges could muster for this outlandish perspective was a European Court of Human Rights decision from 1978, which found that a series of grim techniques used by Britain against Irish internees was not torture — rather it was “cruel, inhuman and degrading treatment.”
The reasoning was similar to that used two years ago, when Yoo and Bybee faced the damning conclusions of an internal Justice Department ethics investigation. The four-year investigation concluded that both men had been guilty of “professional misconduct,” which would have led to professional sanctions and may also have destroyed the protection that Yoo and Bybee’s memos — referred to by senior Bush officials as the “golden shield” — gave to those who solicited his disgraceful advice and then used it to justify their torture program.
On that occasion, a well-known DoJ fixer, David Margolis, was allowed to override the conclusions of the investigators, deciding instead that Yoo and Bybee had been under great pressure and were only guilty of “poor judgment” — which did not involve any kind of punishment.
The Ninth Circuit Court of Appeals also has previous history when it comes to preventing torturers from being held accountable for their crimes. In September 2010, by just one vote, the court sided with the government, dismissing a lawsuit filed by five former victims of “extraordinary rendition” and torture — including the British residents Binyam Mohamed and Bisher al-Rawi — by claiming that the exposure of any information relating to “extraordinary rendition” and torture threatened the national security of the United States. In doing so, the court reversed a ruling in the plaintiffs’ favor that had been made by a three-judge panel of the Ninth Circuit Court of Appeals in April 2009.
Scott Horton also picked up on the invisible hand of Bybee in the court’s ruling, noting that, “Had the court handed down any other ruling, it would have been exposing one of its own.” He added, “The court’s twisted reasoning and distortions of legal precedent otherwise make very little sense. Indeed, the Ninth Circuit judges seemed to be uncomfortable with torture, issuing an opinion that was comparable to a surgical excision: do what is essential to shelter Yoo and Bybee, and not an iota more.
In the New York Review of Books, David Cole had more to say on this subject. After noting that, in January, the Fourth Circuit Court of Appeals threw out a similar lawsuit (PDF) by Padilla against former defense secretary Donald Rumsfeld, which was initiated in February 2007 and initially dismissed by the District Court in February 2011, he expressed dismay at the variety of cases dismissed “on the ground that the CIA’s rendition program is a ‘state secret,’ so that even if it subjected individuals to torture, there can be no adjudication of that fact because the government claimed the suit would disclose information that could compromise national security,” but added that, even so, “the Ninth Circuit’s reasoning was especially disturbing.”
As he explained it, the judges “found that it was not clear that ‘enemy combatants’ had a right not to be subjected to the abuse Padilla suffered,” and their ruling “relied on the doctrine of ‘qualified immunity,’ which holds government officials immune from personal liability for constitutional violations unless the violations were ‘clearly established’ at the time.”
“The idea,” as he proceeded to explain, “is that government officials should not be held personally responsible where the law is murky and they have to make difficult judgment calls,” but in Padilla’s case his lawyers argued that it should have been obvious that “the state cannot treat anyone, even someone convicted of the most heinous of crimes, the way it treated Padilla, who had not even been charged, much less convicted, of anything at the time.” As a result, the lawyers explained, there was no way that Yoo could claim immunity.
For support, Padilla’s lawyers pointed to multiple precedents prohibiting mistreatment of anyone held in detention: convicted prisoners, pretrial detainees, and those held in preventive detention as sexual predators. Under these precedents, they reasoned, it was clear that if a federal prison warden had treated even a death row inmate convicted of the 9/11 terrorist attacks the way Padilla was treated, his actions would plainly violate the Eighth Amendment prohibition on cruel and unusual punishment. If a suspect in a serial murder case were subjected to similar treatment pre-trial, it would clearly violate the Fifth Amendment’s due process clause. It has long been clear that the Constitution strictly forbids the intentional infliction of physical pain on anyone in the government’s custody.
Unfortunately for Padilla, however, the Ninth Circuit judges concluded that Padilla was “no ordinary criminal or pretrial detainee,” and that, because he was being held as an “enemy combatant,” and, it was argued, “it was not clear in 2001-03, when Yoo wrote the memos which laid the groundwork for Padilla’s abuse, that enemy combatants — even US citizens — were entitled to the same protections as all other persons held by the state” — there was no case to answer. As Cole noted, incredulously, the court maintained that “even if was crystal-clear that federal officials could not do this to anyone else … it was not clear they couldn’t do it to Padilla.”
As Cole also noted, this reasoning could only be justified if there was “some arguable rationale for allowing persons held as ‘enemy combatants’ to be mistreated in ways that we do not allow anyone else to be mistreated,” but there is no such thing, of course. As Cole also explained:
If anything, those held in military custody are entitled to better treatment than those held pursuant to a criminal conviction. The authority to hold those fighting for “the enemy” in military custody is not predicated on wrongdoing, but on the state’s interest in incapacitating the enemy. But the first principle of the laws of war has long been that such detainees must be treated humanely. Padilla, as a citizen, could have been tried criminally for fighting against us, but even if he were convicted of such a crime, he could not be subjected to the mistreatment US officials inflicted upon him.
As Cole also noted, John Yoo has “celebrated this decision as vindication,” in a disgusting op-ed for the Wall Street Journal, even though it was no such thing. As he explained, “The court declined to address the merits of whether the conduct Yoo authorized actually violated Padilla’s rights. Instead, it held only that the law was unclear in 2001-03 on this point. But absent any legal principle that would permit us to subject military detainees to abuse that no one else may suffer, Yoo’s advice was wrong — legally, ethically, and constitutionally.”
Cole ended his article by calling for the urgent establishment of “an independent commission to investigate and report on the use of torture and other forms of cruel and inhuman techniques against suspects in the ‘war on terror,'” which is certainly something that should happen, at the very least, although I cannot see it happening anytime soon. In the meantime, I apologize for not dealing with this disgraceful ruling when it happened, but I hope that, three weeks later, it will pick up readers who missed it when it happened, and will encourage some people — particularly US citizens — to reflect on the significance of the treatment of Jose Padilla.
Padilla’s case is one I have been following closely for nearly five years, and it remains one that ought to be of immense significance to US citizens, as it is the story of a US citizen tortured with immunity on the US mainland, who cannot, it seems, hold anyone accountable for what happened to him. That ought to be a disgrace for anyone, but foreigners already know — via Guantánamo — that the US government believes that we have no rights. For US citizens, there are supposed to be protections against this kind of behaviour — protections that all failed, and are still failing today, in the case of Jose Padilla.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.
On Facebook, Willy Bach wrote:
Thanks Andy, re-posted. It would seem that the Amnesty International Report on human rights in the US was too polite. Angry? Oh yes!
Thanks, Willy. Yes, too polite by far. It was god to read that “the killing of Osama bin Laden would appear to have been unlawful,” and that the killings of Anwar al-Awlaki, Samir Khan and at least two others “appeared to have amounted to extrajudicial executions,” and it was good to see criticism of solitary confinement in US prisons, and of the death penalty, of course, but the criticism of Guantanamo was very muted, and there was, as you note, nothing on the ongoing need for there to be accountability for the Bush administration’s torture program: http://www.amnestyusa.org/sites/default/files/air12-report-english.pdf (pp. 356-360)
Willy Bach wrote:
Oh, and this: What a classic piece of creative law revision: “The best authority the judges could muster for this outlandish perspective was a European Court of Human Rights decision from 1978, which found that a series of grim techniques used by Britain against Irish internees was not torture — rather it was “cruel, inhuman and degrading treatment.””
Did ya get that? It wasn’t torture it was torture. I’m not sufficiently devious to have thought that up. Wow! Yoo and Bybee go free!
Yes, well the “golden shield” still exerts its baleful influence on justice and the law, Willy, so that torture isn’t really torture when the US does it, apparently. An absolute disgrace.
Let us not forget that if Yoo is guilty here, and the treatment of Padilla amounted to torture (and it clearly did), that it also opens doors to the prosecution of others, and not just in the CIA, but in the military, FBI, etc. Before the “hard stuff” was whetted upon Mohamed Al Qahtani, FBI Establishment “hero” Ali Soufan constructed a cell for AQ to explicitly mimic that used on Padilla, and the AQ was to get the same dose of intense isolation and sensory deprivation. — Obama dare not “look backward” on this, because the entire state bureaucracy is infested with the filth.
And, by the way, that 1978 ECHR decision on the torture of the IRA prisoners was a horrendous defeat for those who fight against torture and for human rights, bringing up the whole lie around “cruel, inhumane, and degrading treatment,” a dodge the CIA and OLC used. Take a look at those Gitmo October 2002 Minutes the SASC released (and I transcribed) – why CIA flak Fredman practically brags how they use that ploy to fend off the torture issue.
The accountability failure is historical by this time, going back at least to the torture chambers and assassination squads the US ran, with its South Vietnamese partners, in Vietnam, which we came to know as the Phoenix Program. 20,000 or more dead, and tens of thousands more tortured, and not one person ever held accountable. Rumsfeld and Cheney knew this. They counted on it. They were men of that generation.
Indeed, it is the generational effect, wherein the amnesia over the crimes of a different era (facilitated by a captive and slavish media) are unknown or rediscovered by some of the present generation AS IF NEW. They are not new. It’s the same old melody, played out exquisitely on human bodies, bloody sinew and flesh, like a demonic old symphony. Listen to its music. Its beat is our society’s doom.
Thanks, Jeff, for the very powerful commentary. You eloquently explain the pre-9/11 history of torture – and, particularly, how the Vietnam atrocities provided the context in which Cheney and Rumsfeld grew up, although I do still believe that what was disturbingly new after 9/11 – and that people need to continue to be alarmed about – was the expansion of the battlefield to the whole world, and the supposed “golden shield” provided by the torture memos. These weren’t supposed to be made public, but if they did emerge they were meant to justify and shield everyone involved. Until that shield is broken, we remain in deep trouble.
Andy, I totally agree re the current importance of the so-called “golden shield.” In fact, a few weeks I noted one strange oddity that appears to have flown under the wire in regards to the OLC memos. See “If Obama Withdrew Yoo, Bradbury Torture Memos, What Gov’t Opinion Now Covers the AFM & Appendix M?” The article notes the existence of a 2006 OLC Memorandum on Appendix M written by Steven Bradbury. Since Obama supposedly withdrew all the torture memos, did he withdraw the one that covered Appendix M, as well. And if so, what legal opinion covers current use of the abusive interrogation techniques therein which are currently used by DoD?
Jeff, have you had any feedback on that article? You raised some important points, as did Marcy in her investigations, and someone should answer your questions.
Thanks for bringing Jose’s case back. He has a special place among all the thousands of innocents for me because, as an american citizen, his case was covered by ordinary newspapers in the u.s. Introduced to us the day after he was arrested as the “dirty bomber”, then the next day we were told there was no dirty bomb, maybe a plot, maybe Jose was thinking about one. Or maybe he never did anything at all. If he did no one ever told us what it was. No matter. Using his new powers to do so, Bush pronounced him an “enemy combatant” a category of human newly invented by him and his cohorts to circumvent geneva conventions about prisoners of war. enemy combatants were people apprehended on “battlefields”. Like the airport in Chicago. OK i’ll stop now. but it has been a vivid and entirely documented and reported horror story ever since.
thanks for everything you do Andy Lady Justice loves you.
Thank you, Paul. It’s very good to hear from you – and I’m sure Lady Justice loves all who recall what happens to human beings when safeguards preventing barbarism are torn down by nasty men capitalizing on the suffering of others to implement a lawless state. I’m glad you know Jose Padilla’s story so well. Too many Americans don’t …
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
Email Andy Worthington
Please support Andy Worthington, independent journalist: