Repercussions of our garbled policies on terrorists

Jose Padilla is an American citizen who claims he was frequently tortured while he was held in solitary confinement for 3 ½ years without being charged with a crime after his arrest as a suspected terrorist.  Now, a federal judge has decided Padilla can sue the lawyer whose rulings resulted in his physical, emotional and constitutional abuse.  

Padilla is currently serving a 17-year sentence in a federal prison for supporting terrorism and taking part in a conspiracy to provide money and supplies to Islamic extremist groups.  Originally, he was accused, but not charged, with plotting with al Qaeda to detonate a radioactive “dirty bomb.†   

Padilla’s ultimate conviction and sentence aren’t at issue; the denial of his rights as a citizen is and in that respect, things are looking up for this citizen.  A federal judge has ruled he and his mother can sue John Yoo, a lawyer for President Bush, whose advice to the Bush administration legalized the physical and mental abuse Padilla allegedly suffered.  If they prevail, Padilla and his mother will be awarded $1 in damages along with a declaration by the court that his treatment was unconstitutional.  

This is a very important case and, it is equally important to note, it was decided by a U.S. District Court judge in San Francisco who was appointed by President George W. Bush.

According to filings in his lawsuit, Padilla “suffered gross physical and psychological abuse at the hands of federal officials as part of a systematic program of abusive interrogation intended to break down Mr. Padilla’s humanity and will to live.† This interrogation was presumably designed to get him to provide information about the alleged plot to detonate the radioactive bomb, an accusation the feds couldn’t make stick, despite the heretofore forbidden interrogation methods.    

Yoo wrote many memoranda authorizing harsh treatment of “enemy combatants†as a deputy attorney general in the Office of Legal Counsel and a member of a group called the War Council, which shaped several controversial Bush policies in his “war on terror.â€

“In 2002, Yoo delighted the president’s legal counsel Alberto Gonzales by writing a memorandum that proclaimed Geneva Conventions’ torture agreements were obsolete and saying it wasn’t torture until and if the victim suffered damage to the extent of major organ failure,†I wrote in this column four years ago.

“Yoo had a hand in virtually every major legal decision involving the U.S. response to the attacks of Sept. 11,†wrote Georgetown law professor David Cole in The New York Review of Books, “and at every point, so far as we know, his advice was virtually the same—the president can do whatever he wants.â€

President Obama prohibited most of the torture methods approved by Yoo shortly after becoming president, but the new administration has been obliged to represent Yoo, who is challenging Padilla’s right to sue him for his performance as a government official.  This places the current Obama administration in the awkward position of representing a lawyer whose excesses candidate Obama condemned during the campaign.  

 â€œWe’re not saying we condone torture,†a Justice Department attorney told U.S. District Judge Jeffrey White at a hearing in March on the government’s request to dismiss Padilla’s lawsuit.  But, she maintained, action against a government lawyer “is for the executive to decide,†not the courts.

This argument seemed to trouble Judge White, who wondered if the government lawyer was saying, “If high public officials commit clearly illegal acts, a citizen has no remedy in this court.â€

The judge confirmed his doubts in mid-June when he issued a 42-page ruling allowing the lawsuit to proceed, characterizing it as a conflict “between the requirements of war and the defense of the very freedoms that war seeks to protect.† 

He found that “Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.† In other words, Yoo fixed it so that this particular American citizen was held for years without being charged with a crime and deprived of other rights available to other American citizens.  And while he was waiting, Yoo saw to it that he could be tortured.  After all, we were at war.

It will be interesting to see if the Justice Department, which has said it is considering an appeal of Judge White’s decision, will continue a vigorous defense of Yoo or determine it has done its duty.  

At any rate, the determination by a federal  court that the torture victim can sue is, as one of Padilla’s lawyers said, “a significant victory for American values, government accountability and our system of checks and balances.â€

And since the judge in the case was a Bush appointee, the decision might prompt those on both sides of the ideological divide in this country to recognize the fact that you can’t always judge a judge by the president who appoints him.  It can even make a person believe that the country’s working right again.

Retired journalist Dick Ahles of Simsbury may be reached by e-mail at dahles@hotmail.com.