Padilla torture claim reaches the Court

SCOTUSBlog

Lyle Denniston

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.

“Guidebook to False Confessions”: Key Document John Yoo Used to Draft Torture Memo Released

Public Record

Jason Leopold and Jeffrey Kaye have another exclusive over at Truthout on the origins of Bush’s torture program. Kaye and Leopold report:

In May of 2002, one of several meetings was convened at the White House where the CIA sought permission from top Bush administration officials, including then National Security Adviser Condoleezza Rice, to torture the agency’s first high-value detainee captured after 9/11: Abu Zubaydah.

The CIA claimed Zubaydah, who at the time was being held at a black site prison in Thailand, was “withholding imminent threat information during the initial interrogation sessions,” according to documents released by the Senate Intelligence Committee in April 2009.

So, “attorneys from the CIA’s Office of General Counsel [including the agency's top lawyer John Rizzo] met with the Attorney General [John Ashcroft], the National Security Adviser [Rice], the Deputy National Security Adviser [Stephen Hadley], the Legal Adviser to the National Security Council [John Bellinger], and the Counsel to the President [Alberto Gonzales] in mid-May 2002 to discuss the possible use of alternative interrogation methods that differed from the traditional methods used by the U.S.”

One of the key documents handed out to Bush officials at this meeting, and at Principals Committee sessions chaired by Rice that took place between May and July 2002, was a 37-page instructional manual that contained detailed descriptions of seven of the ten techniques that ended up in the legal opinion widely referred to as the “torture memo,” drafted by Justice Department Office of Legal Counsel (OLC) attorney John Yoo and signed by his boss, Jay Bybee, three months later. According to Rice, Yoo had attended the Principals Committee meetings and participated in discussions about Zubaydah’s torture.

That instructional manual, referred to as “Pre-Academic Laboratory (PREAL) Operating Instructions,” has just been released by the Department of Defense under the Freedom of Information Act (FOIA). The document sheds additional light on the origins of the Bush administration’s torture policy and for the first time describes exactly what methods of torture Bush officials had discussed – and subsequently approved – for Zubaydah in May 2002.

Dead Men Tell No Tales: The CIA, 9/11 and the Awlaki Assassination

Global Research
Tom Burghardt

On September 30, the CIA and Joint Special Operations Command (JSOC) assets under the Agency's control, assassinated the alleged "external operations" chief of the Afghan-Arab database of disposable Western intelligence assets, also known as Al-Qaeda, Anwar al-Awlaki, and a second American citizen, Samir Khan, the 25-year-old editor of Inspire magazine, in a drone strike in Yemen.

As The Washington Post reported last month, the "commingling" of CIA officers, JSOC paramilitary troops and contractors "occupy an expanding netherworld between intelligence and military operations" where "congressional intelligence and armed services committees rarely get a comprehensive view."

Or any "view" at all, which is precisely what the CIA and Pentagon have long desired; an oversight-free zone where American policymakers operate, as Dick Cheney infamously put it, on the "dark side," a position fully-embraced by the "hope and change" administration of Barack Obama.

Awlaki's state-sponsored killing, like the May 2 murder of Osama Bin Laden in Abbottabad, Pakistan, resurface many unanswered questions concerning the 9/11 attacks, the so-called trigger for America's global "War on Terror."

But before turning to those issues, it is necessary to take a detour and examine administration actions; specifically the deliberations undertaken by Obama's national security team which culminated in Awlaki's death.

White House "Death Panel"

Unlike the fantasies of the corporate-controlled Tea Party who charged during the run-up to the White House sell-out of health care reform that the administration would create "death panels" to deny care to the elderly, it has since emerged that Team Obama has stood-up the authentic article.

According to The Washington Post, President Obama's Justice Department "wrote a secret memorandum authorizing the lethal targeting" of Awlaki. The Post reports that the memorandum "was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi."

That memorandum, according to The New York Times, was drafted in June 2010, some six months after Awlaki had been placed on the White House hit list, by Office of Legal Counsel attorneys "David Barron and Martin Lederman."

Both former OLC lawyers are prominent "liberals" from prestigious universities; Barron at Harvard and Lederman at Georgetown University.

Ironically enough, in several scholarly articles they had railed against the previous administration's adaptation of the "Unitary Executive Theory" promulgated by "torture memo" authors Jay Bybee and John Yoo.

Under Bush, OLC opinions were used to justify everything from warrantless wiretapping, the domestic deployment of the military to arrest Americans, to the torture and indefinite detention of "terrorist" suspects at the Guantánamo Bay prison gulag and CIA "black sites."

This of course begs the question: if Awlaki's murder was "legal," why then was the authorization to do so reached in camera by officials following a deliberative process which can't be shared with the public because of "national security"?

The answer should be chilling and shocking to all Americans: because the nucleus of a death squad state recalling those stood-up in Chile and Argentina during the "dirty war" period of the 1970s may now exist.

Reuters disclosed that Americans "are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials."

"There is no public record of the operations or decisions of the panel," reporter Mark Hosenball wrote, "which is a subset of the White House's National Security Council. ... Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate."

According to Reuters, "targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC 'principals,' meaning Cabinet secretaries and intelligence unit chiefs, for approval."

A "former official" told Hosenball that "one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to 'protect' the president," i.e., provide Obama legal cover under the thin veneer afforded by "plausible deniability."

McClatchy News reported that "broadly speaking" White House orders to kill Awlaki were based on claims that "the nation's inherent right of self-defense [is] recognized under international law." However, "international law also imposes limits: Targeted killing is banned except to protect against 'concrete, specific and imminent' danger."

And although the administration now claims that Awlaki was targeted for death because "his role in AQAP had gone 'from inspirational to operational'," Reuters disclosed that "officials acknowledge that some of the intelligence purporting to show Awlaki's hands-on role in plotting attacks was patchy."

In fact, the White House has failed to provide any proof whatsoever that Awlaki posed an "imminent danger" to the United States, although there is considerable evidence that he was on the radar of U.S. and allied secret state intelligence agencies for more than a decade, had close ties to several of the 9/11 hijackers and could have been picked up and indicted at any time.

Instead, federal law enforcement officials gave Awlaki a green light to leave the United States, unlike thousands of innocent Muslim-Americans swept-up and detained by the FBI in the post-9/11 hysteria that followed the attacks.

Obama DOJ: John Yoo Memos on Spying Must Stay Secret

The Atlantic
Conor Friedersdorf

The American people should be allowed to know the legal reasoning offered to justify warrantless surveillance during the Bush Administration

What was Bush Administration lawyer John Yoo thinking when he wrote various legal memos declaring that the president has the power to spy on American citizens without getting a warrant or telling anyone about it?

The Obama Administration isn't telling:

The Obama administration has refused to declassify a secret memo from the George W. Bush presidency that justified the warrantless spying conducted by the National Security Agency (NSA).

Matthew Aid, a writer who's covered the NSA and surveillance policy, requested a copy of a 2001 Office of Legal Counsel (OLC) opinion by John Yoo that discussed the legal grounds for electronic spying without permission from a special federal court. The Department of Justice mostly denied Aid's Freedom of Information Act request, saying the redacted information in the OLC opinion was "classified, covered by non-disclosure provisions contained in other federal statutes, and is protected by the deliberative process privilege."

They did release 8 sentences from a 21 page memo.

Said John Yoo: "Intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures."

In contrast, the 4th Amendment to the U.S. Constitution states the following: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It's no wonder that, evaluating other memos Yoo wrote, the ethics lawyers in the Office of Professional Responsibility concluded that he was guilty of "professional misconduct," a judgment he escaped when a higher up concluded that his reasoning was "flawed" and "extreme" but sincerely held. By keeping Yoo's legal reasoning secret, the Obama Administration is once again siding with the Bush Administration and against the innocent Americans it victimized. When the executive branch takes an unprecedented action, in secret, that is later deemed illegal, the American people have an obvious, legitimate interest in understanding how it happened. Shame on the Obama Administration for standing in the way of transparency.

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