No Accountability for Torture
David Cole
The New York Review of Books    May 7, 2012

Sometimes I think being American means never having to say you’re sorry. On Wednesday, May 2, the US Court of Appeals for the Ninth Circuit, a federal appeals court in San Francisco, unanimously dismissed a lawsuit against former Justice Department lawyer John Yoo by José Padilla, the US citizen picked up at O’Hare Airport and held in military custody as an “enemy combatant” for three and a half years, during which he says he was subject to physical and psychological abuse.

As an official in the Justice Department’s Office of Legal Counsel from 2001 to 2003, Yoo wrote multiple memos designed to deny “enemy combatants” legal protections that might get in the way of our holding them incommunicado, depriving them of sleep, slamming them into walls, forcing them into painful stress positions, and waterboarding them. Padilla alleged that Yoo’s memos provided the basis for his years in detention, of which twenty-one months were in incommunicado isolation, and authorized his captors to subject him to abuse. As a result, he claims, he was threatened with death and serious physical abuse; shackled in painful stress positions for hours at a time; administered psychotropic drugs; denied medical care; and exposed to extreme temperatures.

The court dismissed the case before the truth of these allegations could be tested. It reasoned that even if Padilla’s allegations were true, it was not “clearly established” that his treatment violated the Constitution, and therefore the suit must be dismissed. John Yoo could not even be sued for the nominal damages of one dollar that Padilla and his mother sought as a way of emphasizing that their desire was for vindication of their rights, not remuneration.

In closing off yet another avenue of accountability for the wrongs US officials intentionally inflicted on suspects in the “War on Terror,” the Ninth Circuit’s decision does not break new ground. After all, the Justice Department long ago decided not to investigate or prosecute Yoo and others for authorizing torture, a war crime, despite the US government’s legally binding obligation as a party to the Convention Against Torture to investigate and refer for possible prosecution all credible claims of torture against persons within our jurisdiction. A single Justice Department official reversed the recommendation of the department’s ethics office to refer Yoo and his boss, Jay Bybee, to their respective state bars for unethical behavior in writing the “torture memos.”

In January, the US Court of Appeals for the Fourth Circuit threw out a similar lawsuit by Padilla against former Defense Secretary Donald Rumsfeld. In prior years, several courts have dismissed suits by victims rendered to other countries for torture 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. President Obama has also resisted even the appointment of a bipartisan commission to investigate and report on our descent into torture and cruel treatment; apparently he thinks such an inquiry would be too divisive.

But the Ninth Circuit’s reasoning was especially disturbing, for it found that it was not clear that “enemy combatants” had a right not to be subjected to the abuse Padilla suffered. It 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 is that government officials should not be held personally responsible where the law is murky and they have to make difficult judgment calls. But Padilla’s lawyers argued that it should have been clear beyond peradventure 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. Accordingly, they argued, Yoo deserved no 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.

The Ninth Circuit reasoned, however, that Padilla was no ordinary criminal or pretrial detainee. He was being held as an “enemy combatant,” and the Court concluded that 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. And as we had never done this to a US citizen detained as an enemy combatant before, there was no case directly on point. So even if was crystal-clear that federal officials could not do this to anyone else, the court maintained, it was not clear they couldn’t do it to Padilla.

For this reasoning to hold up, however, there must be 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. Without such a rationale, the fact that Padilla was held as an “enemy combatant” was no more relevant than the fact that his name was Padilla, and no prior case involving the mistreatment of prisoners and pretrial detainees was brought by a person named Padilla.

The court offered no such reason for differentiation. And there is none. 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.

The court noted that the Supreme Court in World War II had ruled, in Ex parte Quirin, that a US citizen caught with a number of Nazi saboteurs could be tried in a military court, and need not be afforded in that military court all the procedural rights constitutionally guaranteed to criminal defendants in civilian court. But that holding is easily distinguishable. It concerned merely the choice of a forum for assessing responsibility in wartime. It did not suggest that accused war criminals could be subjected to the physical abuse that Padilla, who was not even charged with a war crime, suffered.

While there are both historical precedents and good reasons in certain situations for trying a person accused of a war crime in a military tribunal rather than a civilian court (as long as the trials are fundamentally fair), there are no precedents, and no reasons, for abusing a detainee in the way Padilla alleges he was mistreated, regardless of his status. Absent such a reason, never articulated by the court, it should have been clearly established that the federal government could not constitutionally abuse Padilla in the way he alleges it did.

John Yoo has celebrated this decision as vindication, just as he treated the Justice Department’s decision not to refer him to his state bar for disciplinary action based on his memos. But it is hardly that. 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.

I suspect that what may actually be going on here is that a US court is not about to award damages, even nominal damages, to someone who was allegedly seeking to fight for al-Qaeda. Padilla was eventually prosecuted and convicted for a more general attempt to provide material support to terrorism, but US officials frequently asserted that he was linked to al-Qaeda.

If that is the case, however, it only underscores the necessity for 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.” A commission could make findings that what was done was wrong, legally and morally, and counterproductive, without rewarding “the enemy” in doing so. We now know much about the brutal mistreatment of prisoners in secret prisons, inflicted according to specific legal guidance from Yoo and others in the Justice Department—although the Obama administration is shamefully still seeking to suppress the details, arguing that Guantanamo detainees should be barred even from discussing the facts in their public trials. But what we still lack is any form of accountability. The courts have proved unwilling not only to impose such accountability, but even to let suits seeking accountability go forward at all. We have exhausted that avenue of redress. But we have not yet said we are sorry. A commission is more urgent than ever.

May 7, 2012, 3:05 p.m.