Still No Accountability for Torture

Last week, the bad news from the Supreme Court was not just manifested in the court’s decision to abdicate its responsibilities towards the prisoners held at Guantánamo Bay, Cuba, by turning down appeals submitted by seven of the 169 men still held, although that was a dreadful decision, establishing, as it did, that the D.C. Circuit Court could continue in its mission to extinguish the habeas corpus rights that had been granted to the prisoners by the Supreme Court in June 2008.

However, it was also accompanied by a refusal to consider an appeal by Jose Padilla, the US citizen held as an “enemy combatant” in a military brig on the US mainland for three and half years from June 2002 to November 2005, and tortured, particularly through the use of prolonged isolation, sleep deprivation and sensory deprivation.

On May 2, the Ninth Circuit Court of Appeals, in California, reversed a lower court decision (PDF) allowing Padilla to pursue a lawsuit against John Yoo, the Justice Department lawyer who wrote the notorious “torture memos,” in which he cynically attempted to redefine torture so that it could be used by the CIA. Padilla — and his mother, Estela Lebron — sought to hold Yoo “liable for damages they allege they suffered” during his “unlawful” detention, which was “in violation of his constitutional and statutory rights,” but the court disagreed. As Scott Horton explained for Harper’s Magazine:

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.”

This, however, was not the appeal that was turned down by the Supreme Court. The appeal in question followed a ruling on January 23, in which the Fourth Circuit Court of Appeals threw out a similar lawsuit (PDF) by Padilla and his mother against former defense secretary Donald Rumsfeld, his deputy, Paul Wolfowitz, former DoD General Counsel William J. Haynes II, former DIA director Vice Adm. Lowell E. Jacoby, as well as Leon Panetta, and two commanders of the brig where Padilla was held.

Padilla and his mother sought “a declaration that defendants’ policies were unconstitutional,” and “nominal damages of one dollar from each defendant,” in a case which was initiated in February 2007 and dismissed by the District Court in February 2011, even though Padilla clearly had a valid argument when he stated that Rumsfeld and the other defendants “formulated an unconstitutional policy for detaining enemy combatants in the war on terrorism, which included the legal defense of that designation and the harsh interrogation measures used pursuant thereto.”

In refusing to accept Padilla’s appeal, the judges stated that “[t]he designations of persons and groups as special threats to national security may be subject to a variety of checks and to habeas corpus proceedings,” but “they are not reviewable by the judiciary by means of implied civil actions for money damages.”

Claiming that its remit does not extend to “national security” problems like the torture of a US citizen may have been convenient for the Fourth Circuit court — and now, it seems, to the Supreme Court as well — but, as David Cole explained in the New York Review of Books after the May ruling in Padilla’s case against John Yoo, the end result is that judges have refused to accept any responsibility for the victims of torture, even though, as his lawyers explained, “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 David Cole continued:

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.

Responding to the Supreme Court’s refusal to consider Padilla’s appeal, Ben Wizner of the ACLU, who worked on the case, lamented, “The Supreme Court’s refusal to consider Jose Padilla’s case leaves in place a blank check for government officials to commit any abuse in the name of national security, even the brutal torture of an American citizen in an American prison.”

Wizner added, “To date, not a single victim of the Bush administration’s torture regime has received his day in court,” and that is certainly true. In February, in the ABA Journal (the magazine of the American Bar Association), Leslie A. Gordon wrote about two other cases, which, at the time, were still ongoing — Doe v. Rumsfeld, in which, using the pseudonym John Doe, a former military translator, who is also a US citizen and a civilian, claimed to have been abducted and tortured by US forces at Camp Cropper, one of the major US military prisons in Iraq. In August 2011, the US District Court in Washington D.C. denied Rumsfeld’s motion to dismiss Doe’s claims.

The other case is Vance v. Rumsfeld, in which Donald Vance, a former US Navy veteran, who was working as a security contractor in Iraq, was also detained at Camp Cropper after being seized by US soldiers at the company where he worked, even though it was he who had alerted the FBI to the possibility of illegal weapons trading at the company. A week after the Doe v. Rumsfeld ruling, three judges on the Seventh Circuit Court of Appeals in Chicago also denied Rumsfeld’s motion to dismiss, although, in October, the court agreed to a government motion to hear the case en banc.

As the ABA Journal explained, Doe and Vance both “revive claims stemming from the watershed 1971 decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the US Supreme Court said the Constitution itself provides a cause of action when a federal officer violates the law.”

Stephen Vladeck, a law professor at American University, told the ABA Journal that the cases were “the only examples of civil suits against officers for post-9/11 abuses that have gone anywhere. Courts have traditionally been pro-government.” He added, “In the last 30 years, the [Supreme] Court has been scaling back Bivens so much so that we ask whether there is even anything left to Bivens. The 7th Circuit and the D.C. District Court are saying ‘maybe.’ That’s a surprise.”

Bivens was also a factor in Padilla’s case, but, unlike Padilla, neither Doe nor Vance were “enemy combatants” accused — however groundlessly — of plotting terrorist attacks in the US, so there was perhaps a good reason for observers to think that Rumsfeld might not evade accountability in either of their cases.

However, last Friday, June 15, as Reuters explained, the D.C. Circuit Court refused to accept Doe’s attempt to hold Rumsfeld “personally liable for violating his rights on the grounds that Rumsfeld as Pentagon chief had developed, authorized and implemented the policies that caused him harm,” and ruled that “the special factors in this case counseled against creating a new category of cases in which government officials can be personally sued.”

In his opinion, Chief Judge David Sentelle wrote, “Litigation of Doe’s case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources and personnel from the mission in Iraq” — even though that conflict has officially ended — and added, “Allowing such an action would hinder our troops from acting decisively in our nation’s interest for fear of judicial review of every detention and interrogation,” a familiar argument used to justify any kind of abuse related to detentions in any area that can be termed a battlefield.

Michael Kanovitz, one of Doe’s attorneys, pledged to continue the legal struggle, and stated, “We think that the result is wrong, that it upsets the fundamental notion in our democracy that the judicial branch exists to enforce the constitutional rights of US citizens, and that it ignores the express command of Congress, the people’s elected representative.”

Realistically, it seems unlikely that Doe will prevail, leaving Donald Vance as the last chance for Donald Rumsfeld to be held accountable for the torture of prisoners. Whether he can succeed where Doe failed also seems unlikely, but the ABA Journal noted that Vance’s case offered “what some academics argue is the perfect fact pattern for a Bivens extension: namely, US citizens — civilians, no less — alleging torture at an American military prison in an active war zone.”

The decision to allow Vance to proceed with his lawsuit stated, “United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.”

In the cases of Jose Padilla and John Doe, the “startling and unprecedented” has come true. As a result, those who find it intolerable that the judiciary can allow senior government officials to have tortured US citizens with impunity must be hoping that Donald Vance will prove the exception to this drift towards institutionalized unaccountability, and that someone will be held responsible for his torture.

As Vance explained in December 2008, when he initiated legal proceedings against Donald Rumsfeld, he was routinely subjected to sleep deprivation, taken for interrogation in the middle of the night, and held in a cell that was permanently lit by fluorescent lights. Subjected to the use of music as torture, he explained that it “sort of removes you from you. You can no longer formulate your own thoughts when you’re in an environment like that.” He also explained that he had written a letter to the commander of Camp Cropper “stating that the same democratic ideals we are trying to instill in the fledgling democratic country of Iraq, from simple due process to the Magna Carta, we are absolutely, positively refusing to follow ourselves.”

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.

As published exclusively on the website of the Future of Freedom Foundation.