[Ppnews] Jose Padilla vs. John Yoo

[Political Prisoner News]

http://www.counterpunch.org/cassel01152008.html

January 15, 2008


Can a National Disgrace be Rectified?


Jose Padilla vs. John Yoo

By ELAINE CASSEL

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.)

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 
<http://www.amazon.com/exec/obidos/ASIN/1556525559/counterpunchmaga>
[]
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.

They are fighting not just for him, but for all of us. And even if 
they lose the fight--as they surely will--the story can't be told too often.

Elaine Cassel practices law in Virginia and the District of Columbia 
and teaches law and psychology. She doesn't like being lied to. Her 
new book 
<http://www.amazon.com/exec/obidos/ASIN/1556525559/counterpunchmaga>The 
War on Civil Liberties: How Bush and Ashcroft Have Dismantled the 
Bill of Rights, is published by Lawrence Hill. She can be reached at: 
<mailto:ecassel1 at cox.net>ecassel1 at cox.net




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