An Oft-Repeated National Disgrace

As readers will likely recall, Jose Padilla is the first American citizen to be designated an “enemy combatant.” His detention without charge lasted a shocking three-and-a-half years. Although the government dropped its initial claim that Padilla had conspired to create a “dirty bomb,” it recently procured from a Miami, Florida federal jury a conviction of Padilla on other terrorism charges.

On January 4, there was another development in Padilla’s story. In the U.S. District Court for the Northern District of California, attorneys working with the Lowenstein International Human Rights Clinic at Yale Law School filed a novel civil action on behalf of Padilla against a former Bush Administration official and current Boalt Hall law professor, John Yoo. (Yoo is, ironically, a Yale Law School graduate.)
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In this column, I will discuss that suit and its chances of success.

The Tortured History of a Tortured American

Arrested in Chicago on May 2, 2002, Padilla was initially detained in a Manhattan jail, ostensibly to provide information to a New York City federal grand jury investigating the 9/11 attacks.

Shortly after a court-appointed attorney for Padilla filed a motion challenging his detention, President Bush signed an order naming Padilla an “enemy combatant” and authorized the Department of Defense to remove him to a Navy prison in Charleston, South Carolina.

Court-appointed attorneys then challenged Padilla’s “enemy combatant” status and the disturbing lack of due process that went with it–no criminal charge, lack of access to attorneys, held in solitary confinement with no hope of release, and use of interrogation tactics bordering on or amounting to torture. In other words, virtually every due process guarantee that American citizens take for granted was denied to Padilla.

Yet the U.S. Court of Appeals for the Fourth Circuit, then the most conservative federal appellate court in the country, held that the President, in a time of “war,” had the right to imprison, without charge, anyone, including an American citizen, until the “end of hostilities”–even if hostilities might go on forever.

Padilla’s attorneys took the case all the way to the Supreme Court. Initially, it was dismissed for improper venue. But his attorneys tried again, and on the eve of a U.S. Supreme Court hearing of another Fourth Circuit ruling, the government took Padilla out of military custody and sent him to Miami, where he was arrested and convicted on charges that he conspired to kill Americans here and abroad.

In a prior column for this site, I wrote about those charges and how the government shifted its theory in Padilla’s case. Currently, the sentencing phase of Padilla’s trial is ongoing. Federal prosecutors in Miami are arguing that he should spend the rest of his life in prison.

His attorneys are using some of the claims made in the civil suit against Yoo in an effort to spare him that fate.

The Civil Lawsuit Against John Yoo

The factual basis for the suit is that as Deputy Assistant Attorney General in the U.S. Department of Justice’s Office of Legal Counsel, Yoo crafted policies dealing with enemy combatants and “alternative” interrogation tactics. In addition, it alleges that Yoo personally recommended to then-Attorney General John Ashcroft that Padilla be named an enemy combatant in connection with the alleged “dirty bomb” plot. It claims that in his book War by Other Means, Yoo takes credit for Padilla’s treatment, arguing it was a victory for justice. The suit also alleges that (as has been widely reported) Yoo was a principal drafter of the now-declassified “torture memos,” purporting to provide legal justification for the government’s use of torture.

The legal theory for holding Yoo liable is that Yoo is responsible for the violations of Padilla’s First, Fifth, Sixth and Eighth Amendment rights, including denial of the right of access to court and counsel, unconstitutional conditions of imprisonment, unconstitutional interrogations, and denials of Padilla’s rights to information, association, and religious practice while he was in the military prison.

The suit also draws a connection between Padilla’s treatment as an “enemy combatant” and his criminal conviction in Miami, arguing that the tactics used in his detention made him unable to effectively contribute to his own defense. The suit sets forth specific allegations of torture, including the use of mind-altering drugs, the stress position, and sleep and sensory deprivation.

According to the Yale Clinic’s suit, the government threatened Padilla that if he told anyone what happened to him while he was an enemy combatant, that he would be re-designated an enemy combatant and taken back into Defense Department custody. The suit alleges, as have his defense attorneys, that Padilla’s lawyers were not able to mount as complete a defense as they could have were Padilla not afraid to talk to them for fear of government retaliation. (As I discussed in a previous column, Padilla’s prior criminal-case attorneys had argued unsuccessfully that he was incompetent to stand trial.)

The remedy the suit seeks is nominal damages of one dollar, plus a judicial declaration that these constitutional violations occurred.

Why the Lawsuit Is Unlikely to Succeed, Yet May Have a Positive Effect

Unfortunately, the lawsuit has a limited likelihood of success on the merits, as the Clinic is doubtless aware. But public interest legal clinics don’t necessarily bring cases with the expectation of success–at least not in the current legal climate. They do so in order to bring public scrutiny to bear on government actions that would have been unthinkable just six years ago.

The reason the suit is likely to fail is that government officials generally possess personal immunity from suit for their policy decisions. Were this not the case, government would be paralyzed by something even worse than partisan politics–the constant threat of litigation.

While this immunity has exceptions, when constitutional rights are violated the standards are very high. For example, what may seem to be egregious actions by law enforcement officials still do not lead to personal liability for their actions. Moreover, Yoo is being sued for masterminding policies others applied. Yoo didn’t do anything to Padilla, as the suit admits. Rather, he helped create the means and the methods for other government agents and employees to do the dirty work.

In a similar case brought under different legal theories by enemy combatant prisoners at Guantanamo Naval Base, the U.S. Court of Appeals for the District of Columbia ruled on January 11, 2008 that a suit against former Chairman of the Joint Chiefs of Staff Richard Myers and Secretary of Defense Rumsfeld could not stand. The Court found that they had immunity from suit because they were acting in their official capacities and, further, did not actually take part in the alleged acts of torture and denial of rights. (In addition, the court ruled that the Guantanamo prisoners did not possess most of the rights alleged to have been violated.)

The same holds true for Yoo. As long as the actions he undertook were a part of his legitimate government employment, he is safe from civil liability.

Finally, the “state secrets” defense, which I discussed in my prior article on Padilla’s conviction, may also protect Yoo. This defense claims that even to allow discovery into what happened to Padilla would put the country at risk. To date, several suits against the government for kidnapping and torture have been dismissed on these grounds.

But this argument is embarrassingly weak. The Administration’s interrogation and internment methods and tactics are widely known, from the reports of non-partisan observers like the International Committee of the Red Cross. Moreover, judges always have the option to close proceedings to the public or even deny the plaintiff access and simply make their own evaluation. Yet, to date, not one Court has allowed a post-9/11 case to proceed when the government throws up this roadblock.

In addition to the state secrets defense, the Bush Administration has advanced — successfully — many other reasons why it cannot be held to account for egregious actions taken against hundreds of prisoners since 9/11. Indeed, the decision in Rasul vs. Myers, mentioned above, lists a litany of reasons, most of which defy not just the laws and Constitution of our own country but international law and treaties.

What’s a citizen to do when aggrieved by his or her government? Sue to challenge the law or policy–but not the maker of the law or policy–and, more importantly, vote to oust the makers of unjust laws and policies from office.

What the Bush Administration Did To Padilla Is A National Disgrace

Even if the Clinic’s suit on Padilla’s behalf does not succeed, it will have called further attention to a national disgrace. Yoo, the other so-called post-9/11 “War Counsel,” and the officials who have carried out the policies of these attorneys have acted outrageously and unconscionably.

For this reason alone, we should be grateful for the Clinic and hundreds of attorneys of a different type–those who have fought not for policies of torture, but for the rights of Padilla and every other citizen to be treated in accordance with American and international laws and principles of human dignity and decency.