Obama Still on the Wrong Side of Torture - Padilla v Yoo
The Obama administration is continuing to actively pursue the Bush administration's assertion of immunity for those who crafted, approved, and engaged in torture. Yesterday, the Department of Justice and John Yoo were handed a stinging rebuke by Bush appointed Judge Jeffrey White of the Northern District of California.
In the complaint (Padilla v Yoo amended complaint 23 pages pdf), Padilla is suing John Yoo for being directly responsible for his detention, the violation of his Constitutional rights, and being subjected to torture and abuse. The basis of the case was to determine if Padilla was within his rights to pursue his complain against Yoo. In most regards, Judge White states in his opinion (Opinion in Padilla v Yoo - alternate link - 42pages pdf) that Padilla has basis to pursue his suit.
Here are a few notable excerpts from Judge White's opinion.
"Padilla also alleges that he has suffered gross physical and psychological abuse upon the orders of high-ranking government officials as part of a systematic program of abusive interrogation which mirror the abuses committed at Guantanamo Bay." p2-3
What is notable here, is the admission within the Judge's opinion that the interrogation methods experienced by Padilla in his three years and eight month detention at the Naval Consolidated Brig in Charleston, South Carolina were the same "abuses committed at Guantánamo Bay." This is notable on two counts. First, that Padilla was subjected to these techniques (detailed on pages 4-5 of the opinion, with associated Constitutional violations on 9-10). Second, because of the specious argument that no such "techniques" were used at Guantánamo (and were therefore not "exported" to other facilities - notably Abu Ghraib).
Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review." p 21-22
Here, Judge White is responding to Yoo's request to place not only his direct (and self-admitted) actions regarding torture and Padilla's case in particular, but that the very work that he did, under the shield of immunity. Judge White offers his opinion that such a shield does not exist.
ii. Eighth Amended Prohibition Against Cruel and Unusual PunishmentYoo contends that because Padilla was not convicted of a criminal offense at the time of his military detention, the Eighth Amendment prohibition against cruel and unusual punishment does not apply to him." p35
I believe that the quote above is exemplary of the convoluted "logic" of both Yoo and the Bush administration. First, they create a new "category" of detainee to get around both U.S. law and international agreements. He then argues that because Padilla was not "convicted" that the guarantees against "cruel and unusual punishment" do not apply.
A lot is being written elsewhere about the opinion, and it is not my goal to repeat those pieces here. I believe that there is much to be gained by taking a half hour and reading the Judge's opinion. It not only details this specific case, but goes into the legal arguments of other cases, and pertinent memos which have been released.
Related Articles and Documents
Padilla v. Yoo - Judge denies motion to dismiss "torture memos" case. Constitutional Law Prof Blog. 6/13/2009.
Padilla v Yoo suit (1/04/2008)
Obama administration backs immunity for author of Bush torture memos. Patrick Martin. WSWS. 6/09/09.
San Francisco judge rules convicted terrorist Padilla can sue Bush aide over torture memos. Don Thompson. AP. 6/13/09.
Judge Presses Government on Torture Memo Liability. Dan Levine. Law Journal. 6/09/09.
Judge: Ex-Bush lawyer can be sued over torture. Bob Egelko. SF Chronicle. 6/13/09.
Judge rules Padilla can sue over torture memos. USA Today/AP. 6/13/09.
Judge Allows Civil Lawsuit Over Claims of Torture. John Schwartz. NY Times. 6/13/09.
Rec'd and bookmarked! Thank you for this very informative piece, along with the documentation and other links. Very helpful!
June 13, 2009 11:36 PM | Reply | Permalink
Thanks SJ. I figured folks might appreciate the links to the actual documents. They were damnably hard to find.
June 13, 2009 11:39 PM | Reply | Permalink
If you're going to follow these legal battles, you might want to get a subscription to PACER (pacer.psc.uscourts.gov), which will then give you on-line access to almost all federal court dockets and pleadings. Searching for civil cases involving John Yoo in California district courts took me to the relevant case, and the recent opinion, in less than a minute.
Documents other than court opinions cost $.08 per page to download, so the 6/12 opinion was free but getting a copy of the complaint cost me $1.84. I still think that's better than wasting time looking for someone else's copy of the pleadings.
June 14, 2009 9:07 AM | Reply | Permalink
Thanks for the lead. I get very frustrated when the access to source documents are not included with articles. This is NOT just an issue with court proceedings. If folks are sitting there with access to the report, they should either include the link to the report, or how to get access to the report. IMHO.
June 14, 2009 10:02 AM | Reply | Permalink
Your article doesn't really finger Obama here, you could detail his role in this.
"is the admission within the Judge's opinion "
That's bullshit. All the Judge is doing is saying that Padilla might have a case. The Judge is not ruling or "admitting" what you imply. The Judge is saying that Padilla can present a case to try to prove that, not that it has been established.
June 14, 2009 3:36 AM | Reply | Permalink
The judge has determined there is sufficient cause for this suit to go forward, as eds points out. The trick will be just how obstructive the Obama DOJ will be in allowing the truth to be adjudicated. Cheney would most certainly have insisted that any rights Padilla might have had need to be forfeit in order to protect "state secrets." I fear Obama will do likewise.
The litany of charges in this complaint is simply staggering, especially when it comes to grossly interfering with the lawyer/client relationship for no reason other than escaping any kind of review of the activities taking place. One would think the Torture Memos would have made such a cover-up unnecessary - unless, of course, you have little faith in Yoo's works and fear that common sense would instead prevail in a court of law. Seriously, can anyone read through the complaint in its entirety and still argue that it stops short of torture? What else could one do to aggravate these "enhanced interrogation techniques" other than kill Padilla outright.
We deserve to know just what kind of torture has been committed in our names. If the activities outlined in this complaint are even close to being true, Cheney, Yoo, et.al., KNOW that they far exceeded their authority and stepped over the line into criminal behavior. And we cannot allow the precedent wherein they now get away with it without consequence.
Finally, it's odd to think that I always thought I was blessed to live in the U.S. wherein we could always rely upon Justice and the rule of law. As a kid, we would learn about the prisons in Turkey or the gulags in Russia and feel we were fortunate to never have to fear such injustice in the United States. Funny now how the Turks and the Russians probably look to us with that same sense of foreboding that I had asa child, telling them that our system of "Justice" is to be avoided at all costs. Truly disgusting!
June 14, 2009 4:16 AM | Reply | Permalink
State secrets. An interesting phrase do you not think Sleepin. As ecc. points out, for the purposes of Summary Judgement or in the context of a motion to dismiss, the court must assume everything alleged in the complaint is true.
But the court is saying that governmental immunity is qualified.
It is just, as you say, 'state secrets' is a phrase I always learned was what the Ruskies and the Chinese used to keep power from the people. Ha!!!
June 14, 2009 8:45 AM | Reply | Permalink
The bigger the umbrella of state secrets, the less accountability. This is why transparency is truly important in government, and why Obama is so well received on the issue of transparency. People cannot make sound decisions if they do not have the information, and there can be no access to justice, if critical material is withheld.
June 14, 2009 10:22 AM | Reply | Permalink
Personally, I have never rested comfortably with the assertion that our system of justice is "fair." Too many innocent people get locked up, and too many guilty walk free. Far too often, the outcome rests on how much money you have.
On the other hand, I think that there is generally more possibility of fairness in the U.S. system than there are in some other systems. That is why establishing kangaroo courts, and denial of access to information and witnesses, and denial of representation and counsel are such big deals. When the checks and balances of the system are thrown out, then we are no longer dealing with the same system. Of course, none of that is being determined in White's opinion.
June 14, 2009 10:18 AM | Reply | Permalink
Let's be clear that a complaint may allege much which is neither significantly true nor provable. That is what a defense/answer is for, to challenge the plaintiff's allegations. So Padilla may paint a lurid portrait of torture, but the fat lady must sing after the other versions have been told.
I think this case is a good additional move to supplement the attack on bad/criminal policies and conduct under Bush. But if we seek to know the truth about this mess, we should be careful about lumping the roles of various actors into one bag.
For example, if interrogations went beyond what Bybee/Yoo described in their memos, the primary fault lies not with Bybee/Yoo but elsewhere. Also, as I read Bybee's Aug 2002 memos they are not absolute immunity documents, they are merely qualified legal opinions. If someone else errantly took them as permission slips, that someone else is the culprit in my view. While the OLC does have more power than just "any ol' hick lawyer", the buck doesn't stop there. So I'm pretty skeptical on this. I believe Bush and The Principals Committee are the ones who are the high level bad apples. If it can be shown that Yoo conspired with the Principals Committee to knowingly produce impossible legal theories, that would be a different matter, but I don't see the evidence to prove that (and no, I'm not being naive here).
btw, I have not had time to read the Yoo complaint yet, so my above first remark here might be more theoretical than practical.
June 14, 2009 4:03 PM | Reply | Permalink
Well said, Jeezus. Agreed, for the most part.
I detect in you, however, more disappointment than I have, in Obama so far. I have made my feelings pretty clear that I think in some ways he has not met up to my expectations. You have done so even more. I think we need to give him, and his DOJ more time.
June 14, 2009 4:26 AM | Reply | Permalink
LisB, I think that what troubles me is that the DoJ is supposedly independent, and should not be directed by any President. This was the case with the Bush administration, and in my opinion the same rule holds for the Obama administration. The DoJ is supposed to be apolitical. That is why the political criteria used to select lawyers and personnel by the Bush administration was (and hopefully will continue to be) a big deal.
The hand of ANY President should not be able to use the the DoJ for personal or political purposes. The Mission of the DoJ states:
In other words, a President should not call over to the DoJ and say "Don't pursue this" or "Go after these folks" or "Hire/fire based on political or party criterion."
June 14, 2009 10:38 AM | Reply | Permalink
"the DoJ is supposedly independent, and should not be directed by any President"
I completely disagree.
"The DoJ is supposed to be apolitical."
I completely agree.
"a President should not call over to the DoJ"
That's situational, imo. The DOJ in IN the Executive Branch, it's not separate.
June 14, 2009 4:10 PM | Reply | Permalink
The opinion is more readable than most judges' opinions, and is worth a read for those interested in the legal issues. Two important notes:
1. For purposes of the motion to dismiss, the court had to accept as true all of Padilla's allegations. That means that the court has NOT found that Yoo was responsible, but only that Padilla has sufficiently alleged facts that would lead to the conclusion that Yoo was responsible if those facts are actually proven.
2. The most significant legal issue addressed by the court was whether Yoo was entitled to official immunity. The court correctly noted that official immunity is "qualified," which means that an official is protected from personal liability only if the official acts reasonably. The court stated the question as "whether, under that clearly established law, a reasonable [official] could have believed the conduct was lawful." The court then went on to review the various rationales that have been offered by Yoo et al. for their claims that "enemy combatants" have no constitutional rights, and rejected all of them, finding that Padilla's constitutional rights were "clearly established." The unavoidable conclusion is that Yoo was not merely wrong about the constitution, but could not have reasonably believed the memos he was writing.
The opinion therefore stands as the first of what I hope will be series of judicial rejections of everything Yoo stands for.
June 14, 2009 8:09 AM | Reply | Permalink
I also disagree with the idea that the arguments of the Justice Department in this case represent a continuation of Bush administration policies.
Whenever a lawsuit is filed against a government official for actions taken in the person's official capacity, the Department of Justice is obliged to defend the official in court. In this case, the arguments raised by the DoJ are the same arguments that any lawyer would make in defense of a client, regardless of administration policy. And there are valid public policy reasons why it might not be such a good idea to settle these kinds of disputes through civil lawsuits so there are reasons why the Obama administration might want to defend Yoo against civil liability even for actions that the Obama administration do not support.
But there are no similar reasons to defer criminal prosecutions for the same conduct. So it is theoretically possible for the DoJ to be defending Yoo in civil actions even while prosecuting him in criminal actions.
June 14, 2009 8:23 AM | Reply | Permalink
Ecclesiastes, thanks for adding to the discussion. It sounds as if you have a law background. Apparently, representation of former government employees is not a slam dunk.
This from Federal Employees Defense Services:
But you should also know that DOJ has frequently taken the position that it is not in the scope of your employment or the interest of the U.S. to defend an employee where the suit involves unauthorized physical contact, use of inappropriate language, and other similar inappropriate or unauthorized conduct. In these cases, the employee is forced to retain private counsel at his/her own expense, and of course may become personally liable to pay a judgment or settlement if he or she unsuccessfully raises an immunity defense.
And this from the Washington Independent which essentially argues the same thing:
Since Yoo v Padilla focuses around Yoo's immunity, and the DoJ has NOT substituted itself for Yoo, PERHAPS the DoJ and the administration are acting with caution so as to not be perceived as having a political ax to grind. Perhaps, though I have not heard that Obama has pulled back from his clean slate position on the instigators of torture.
June 14, 2009 9:56 AM | Reply | Permalink
Thanks Rowan for the info, and thanks to Ecclesiastes for the explanation. It's so hard to wrap my head around this issue.
June 14, 2009 9:36 AM | Reply | Permalink
Ditto ... aack!
June 14, 2009 9:58 AM | Reply | Permalink
Wow, Rowan. Another good thinker blog. I'm bookmarking this because I am sure it will fall off the rotation before I get a chance to hit all the links. This kind of stuff does not come easy to me, so I really have to take my time going through the information.
Migwetch(thanks), for this.
June 14, 2009 2:58 PM | Reply | Permalink
Flower, I find most legal stuff hard to read as well. However, White's opinion actually was readable and mostly understandable. Something I haven't run into a lot when looking at opnions and decisions, and definitely better than trying to read through legislation. Gads!! that's a real brain stressor.
June 14, 2009 3:27 PM | Reply | Permalink
Another drop on the right side of the scale that will eventually tip towards justice.
You have probably seen this but for those that haven't, the ACLU has a splinter site, Accountability for Torture, mostly related to their FOIA efforts but with a lot of interesting background, documents, updates and links. I believe much of this was already on their site but is consolidated here. There is a "Submit evidence of torture to the DoJ" page (and other tools like a "letter to the editor" generator) where instead of an auto-generated email, actual documents that are evidence of torture, such as the memos, can be forwarded to the DoJ. If they begin receiving thousands of these documents demanding crimes be investigated, it becomes harder to ignore.
Excellent post as always, Rowan.
June 14, 2009 4:15 PM | Reply | Permalink
Thanks Don for the link and the suggestion!
June 14, 2009 4:22 PM | Reply | Permalink
Padilla is such an angel - convicted of terrorism conspiracy charges and conspiring to murder, kidnap and maim. I think he got what he deserved.
June 14, 2009 4:22 PM | Reply | Permalink
And I, for one, would have expected nothing else from you, Bill.
June 14, 2009 4:36 PM | Reply | Permalink
why would you feel sorry for Padilla? He was out there doing some very bad things.
June 14, 2009 5:08 PM | Reply | Permalink
MCB, You totally miss the point. No matter how awful Padilla might have been / or be, he is a U.S. citizen detained without habeas corpus, access to counsel, and was held "secretly" - no one was informed where he was. Further, while so held he was subjected to abuse and torture. This happened to A U.S. CITIZEN.
Now I also do not feel that non-citizens should be held and treated as such, but this is a different issue. A U.S. citizen was denied all legal and Constitutional protections. Not even Timothy McVeigh - who killed 168 people (and injured at least 680) in an act of domestic terrorism was held in this way.
We had all better be damned scared if a President, or our government, can just deny a U.S. citizen all the protections of law.
June 14, 2009 5:54 PM | Reply | Permalink
McVeigh's act had already been committed and there wasn't much more damage he could do. I think they viewed Padilla differently. McVeigh isn't really a good analogy. Padilla was potentially useful to finding other members of al Qaeda.
And even Scalia has said that torture doesn't necessarily violate the 8th amendment.
It's a hard question - if a US citizen decides to join al Qaeda and fight against the US, should we still give them habeus corpus. And it wasn't just Bush that denied HC to Padilla unilaterally, it went back and forth through the legal system.
It also happened back during WW2 with Nazi saboteurs that were also US citizens.
June 14, 2009 6:30 PM | Reply | Permalink
June 14, 2009 10:39 PM | Reply | Permalink
The formatting didn't come out the way I planned, but it still makes a certain amount of sense.
June 14, 2009 10:41 PM | Reply | Permalink
It does?
June 15, 2009 5:11 AM | Reply | Permalink
The US government does not give or grant the right of Habeas Corpus to anyone. Nor does it give or grant rights to citizens. The rights are held by the people, who grant powers to the government. The Bill of Rights is an enumeration of inalienable rights. The amendments are restrictions on government power, not some grant of rights to subjects.
June 14, 2009 11:29 PM | Reply | Permalink
Really? Supreme Court case of Ex parte Quirin would say otherwise
June 15, 2009 5:16 AM | Reply | Permalink
The supreme court interprets. Quirin dealt with foreign saboteurs. Padilla is a citizen. The ABA wrote of the use of Quirin:
The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, "The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States." Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin, that right could hardly be denied to U.S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.
The US government has extended the jurisdiction and application of US law through the concept of extraterritoriality. One example is the prosecution of sex tourists.
The Constitution guarantees equal protection under the 14th amendment("no state shall ... deny to any person within its jurisdiction the equal protection of the laws"). Thus if a person are subject to the penalty of the law, that person is entitled to its protections.
June 15, 2009 10:51 AM | Reply | Permalink
Not all were German. One (Haupt) was a US citizen
June 15, 2009 1:20 PM | Reply | Permalink
And they all had counsel.
Thus, if someone is subject to the penalties of US law, they also enjoy the protections.
June 15, 2009 1:58 PM | Reply | Permalink
Really? Well I guess if you consider counsel to be military counsel in a secretive military tribunal. Too bad they weren't afforded habeus corpus. Not sure what protections they received that you are thinking of.
According to the Supreme Court ruling - "Citizenship in the US of an enemy belligerent does not relieve him of the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war"
The last line of the ruling states "leave to file petitions for habeus corpus in this court should be denied."
June 15, 2009 5:53 PM | Reply | Permalink
Fortunately for us all, the issue of executive suspension of Habeas has been effectively reversed by the Hamdi and Hamdan cases.
June 15, 2009 7:49 PM | Reply | Permalink
OK - but at least it sounds like you agree that the Quirin saboteurs weren't protected
June 15, 2009 8:38 PM | Reply | Permalink
Rowan, thank you for bringing this to our attention. I agree with LisB, though, that we need to give the president more time on this issue. I don't think we've seen the end of it. At least I hope we haven't seen the end of it.
June 14, 2009 4:55 PM | Reply | Permalink
I would LOVE to give Obama TIME. However, as is abundantly clear, he doesn't have time. He has this year at most to address thorny issues. Then we are into campaign season and everyone doing their yellow line dance in the middle of the road.
He doesn't have the next 3 plus years to deal with any of the major issues whether those be health care, the economy, Iraq/Afghanistan, energy, or the investigation or not of the questionable actions of the Bush administration.
I would like to think that's not the case, but unfortunately it is the likely reality.
June 14, 2009 6:01 PM | Reply | Permalink
I hear what you're saying. As I've posted before, I prefer a commission, or some kind of investigation before we undertake prosecutions. I have read recently that the Senate is currently investigating. Haven't heard when they expect to finish. I think going off half cocked with prosecutions is bound to be seen as partisan and vengeful rather than as a rational step to take. I'm willing to give them time.
June 14, 2009 6:12 PM | Reply | Permalink
Thanks for the information. It seems that the Judge at least is willing to adhere to his oath, that is at least under this administration.
The discussion about the 'granting' of rights to anyone, let alone a citizen, should stand as a warning to us all. The government has never had any power under the Constitution to grant civil rights. Civil rights are just that.
Disgusting how far our government officials have descended.
June 14, 2009 11:34 PM | Reply | Permalink