Monday, April 23, 2012

Padilla torture claim reaches the Court

The highest-profile U.S. citizen taken captive as a suspected terrorist — Jose Padilla — returned to the Supreme Court on Monday, in a bid to get the federal courts to review the government’s power to wage its “war on terrorism” through prolonged detention inside the U.S., under harsh conditions and without criminal charges.  Joined by his mother, Estela Lebron, Padilla asked the Court to decide one issue: may federal officials be sued for damages “for the torture of an American citizen on American soil.”  (A docket number has not yet been assigned to Lebron, et al., v. Rumsfeld, et al.)

The petition is a challenge to a ruling in January by the Fourth Circuit Court, declaring that the U.S. military policies of detention and interrogation cannot be challenged in a claim for damages in federal court.  (A post on this blog discussing the Circuit Court ruling can be read here.)  The new petition is here.

The outcome of the case may also affect Padilla’s attempt to hold a former high-ranking Justice Department official, John Yoo, legally accountable for what happened to Padilla in captivity — a case still awaiting a ruling in the Ninth Circuit Court (Padilla, et al., v. Yoo, Circuit docket 09-16478).  In one of several rounds of new briefing ordered in that case, the two sides were told to comment on the impact there of the Fourth Circuit ruling that Padilla is now contesting in his new petition.

Detainees held by the U.S. military as terrorism suspects do have a constitutional right, under the Supreme Court’s 2008 decision in Boumediene v. Bush, to test in a habeas court whether the government has any power to detain them, even if they are not citizens.  But that option — one that has seldom worked for detainees in general, and did not work for Padilla — does not include any inquiry into claims of torture or other human rights abuses during captivity.  Still, the Fourth Circuit ruled that the habeas option is the only legal recourse for a wartime detainee, even one who is a U.S. citizen.

Claims of torture have not fared well in most lower courts or in the Supreme Court, and the Justices have yet to rule directly on any such claim arising out of government policies that followed the terrorist attacks of September 11, 2001.   Those policies, begun under President George W. Bush, have been continued, with some changes, by the Obama Administration.  In most such cases, the Justices have simply denied review or barred such a lawsuit either on procedural grounds or out of fear of intrusion into national security.
The Fourth Circuit, in its ruling against Padilla’s claims, said the policies the government had adopted since 9/11 carried “profound implications for national security,” but whether they were the right policies to counter terrorism is for the political branches to ponder, not the courts.  It called a claim for money damages against former leaders of the Pentagon and other military officers a “blunt deterrent.”

In technical legal terms, what Padilla and his mother are seeking is a right to sue under the terms of a 41-year-old ruling that had nothing to do with terrorism policies: the Supreme Court decision in Bivens v. Six Unknown Agents.  That decision said that, in some circumstances, an individual could bring a lawsuit directly under the Constitution, when no other remedy was available, for a claimed violation of individual rights.  Since that case came down in 1971, however, the Court has only twice allowed such a lawsuit to go forward, and the last time it did so was in 1980.  The last such ruling was in the case of Carlson v. Green.

Padilla’s petition is tied directly to both the Bivens and Carlson rulings. His claims, the filing said, “fall squarely within the heartland of Bivens and Carlson.  As in Carlson, [Padilla alleges] mistreatment while in federal custody.  And as in both Bivens and Carlson, the traditional circumstances for permitting Bivens relief are plainly present: petitioners seek to hold individual federal officers accountable for grave abuses of a prisoner in federal custody, and there is no adequate alternative remedy.”

The Fourth Circuit, the document added, “did not dispute that if military agents entered a civilian jail, seized a man from the civilian justice system, transported him to a military prison, and subjected him to a program of extreme interrogations, sensory deprivation, and punishment, the victim of these practices would have a cause of action under Bivens and Carlson.  Rather, the court apparently believed that the victim lost that cause of action as soon as the Executive unilaterally labeled him an ‘enemy combatant.’”

But, it added, “a unilateral change in label cannot effect a change in law.  A contrary rule would allow the Executive to be the architect of its own immunity, and would effectively overrule Bivens in the name of limiting its reach.  Viewed properly, the Fourth Circuit’s decision was not a refusal to recognize a ‘new’ Bivens remedy, but rather an impermissible decision not to give effect to an old one.”

Padilla was held in a Navy brig in Charleston, S.C., for nearly four years, after he had been designated an “enemy combatant” on direct order of President George Bush.  He had been seized at O’Hare Airport in May 2002 after returning from overseas.  He was held prisoner on the theory that he was a “material witness” in the government investigation of the 9/11 terrorist attacks.  But he was taken out of civilian custody on President Bush’s orders in June 2002, and taken to the South Carolina brig.
He was taken out of the brig and sent back into civilian custody, for prosecution on charges of plotting overseas murders and kidnapping and aiding the al Qaeda terrorist network.  He was convicted, and was originally sentenced to 17 years and four months in prison, but a federal appeals court threw out that sentence as too lenient; he is awaiting a new sentence.

After that conviction, he and his mother in February 2007 sued former Defense Secretary Donald Rumsfeld, other former Pentagon officials, and two former commanders of the Navy brig, contending that each was involved in the harsh interrogation techniques and forms of cruel treatment of him while he was in an isolated cell at the Charleston facility.

The core of their claims, as the new petition described them, is that Rumsfeld and the other officials and military officers “directly participated in his torture and abuse in an American prison.”  He sought a legal declaration that his constitutional rights had been violated, and he sought nominal damages of $1 from each of the six people sued.   A federal judge, at the government’s request, dismissed the lawsuit in February of last year, and the Fourth Circuit agreed with that result in its ruling on January 23 of this year.

The case was dismissed at the outset, so the lower courts did not rule on any claim of official immunity to the claims.

Apart from the claims of Padilla and his mother against Pentagon officials and military officers, he and his mother are suing California law professor John Yoo, who was a deputy attorney general during the George W. Bush Administration and has said, in a book he has written, that he was a key official in shaping detention policy for the federal government.   Yoo was the author of once-secret legal memos that appeared to give military and civilian officials wide discretion to carry out what were called “enhance” interrogation techniques — techniques often claimed to amount to torture by the targets of such actions.  Padilla and his mother contend that Yoo’s memos led directly to his mistreatment while in military custody, and to his designation as an “enemy combatant.”

A federal judge in San Francisco, District Judge Jeffrey S. White, in June 2009 cleared the way for some of Padilla’s legal claims against Yoo.   That ruling has since then been under review by a three-judge panel of the Ninth Circuit.   The panel held a hearing in the case in June 2010, but no decision has yet emerged.  Three times since that hearing, the panel has called for new briefing on the impact, if any, of rulings by other courts.  In one of those orders, last January, the panel ordered new briefing on the impact of the Fourth Circuit ruling in Padilla v. Rumsfeld.

The filing of those supplemental briefs, at the end of February, was the last action noted on the Ninth Circuit docket in that case.  Although Yoo is represented in that case by a private attorney, the Obama Administration has joined in urging the Circuit Court to throw out that lawsuit.

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