US District Judge Jeffrey White has ruled that Jose Padilla has the right to sue John Yoo, the government lawyer who wrote the memos that approved the torture of terrorists, including torturing Padilla (according to his suit).
Padilla — a US citizen — was arrested in Chicago in 2002 and was declared an “enemy combatant”. Originally the Bush Administration accused him of plotting with Al Qaeda to detonate a “dirty bomb”. He was held in a Navy brig without charges for almost four years, but eventually was tried on lesser charges of conspiracy to provide money and supplies to Islamic extremist groups. He was found guilty and is now serving a 17-year jail sentence.
His suit covers his time in the brig. During that time, Padilla says he was detained illegally and tortured, which violates his constitutional rights (remember, he is a US citizen, and was arrested in the US, not on a battlefield).
The Justice department had argued for the dismissal of the suit, claiming that courts had no power to scrutinize high-level government decision-making, especially in wartime. Of course, if we agree with this premise, then the endless war on terror means that the government can arbitrarily arrest and torture anyone it wants to, anywhere, any time, without even charging them with a crime.
What is ironic about all this is that Judge White was appointed by Yoo’s boss, George W Bush. I’m still waiting for some right-wing-nut to accuse White of being a liberal activist judge.
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Just like they accused David Souter of being a liberal activist judge. The irrationality of this is astounding.
The sticky point to remember here is that this guy is not an Iraqi citizen arrested in Iraq, not an Iraqi citizen arrested in America, not even an American citizen arrested in Iraq,…he’s an American citizen arrested in America,…that’s a serious and significant precedent to set.
And John Yoo, like you mention, was not part of the Justice Department; he was Bush’s White House Counsel, as in not part of a theoretically separate body whose job it is to scrutinize and challenge the White House on legal matters but part of a small body within the White House whose job it is to protect the President from external legal challenges.
The right to due process of law and the writ of habeas corpus are the only things protecting us from criminal abuses by the government, and so part of me wholeheartedly agrees with you.
At the same time, you really shouldn’t dismiss the Justice Department’s point about needing to temporarily suspend certain rights during wartime. Lincoln did it, and I think it was justified. Roosevelt did it by interning the Japanese, and that probably wasn’t justified. If you think about it, illegal wiretapping is a clear violation of civil liberties, but it’s not hard to imagine that it just may work. And it’s not like unlawful detention, where it’s clearly causing personal misery and restraint to a person. On par, is it worth it? That’s hard to say. And I think that’s why the public usually turns a blind eye to this sort of thing.
The Constitution does allow the president to suspend Habeas Corpus during wartime. I don’t think that is what is at issue here. All of the courts that have ruled on Padilla’s detention have ruled against the government’s argument that Padilla’s constitutional rights could be waived. The criminal indictment against him was actually an attempt by the Bush administration to avoid having the Supreme Court rule against them because it was clear that things were heading in that direction.
Regardless, I think there are serious constitutional questions about whether the suspension of rights can be legally justified when Congress has not declared war, as is the case today.
The Constitution also requires that those criminally detained not be subject to cruel and unusual punishment. If Padilla was tortured, that would be in violation of the Constitution.
It will be interesting to see whether the court decides whether the the right to be free from torture can be suspended whether during war time or as in this case, when Congress has not actually declared war.
My main concern is that our so-called “war on terror” is never ending. Does this mean that we should just throw away the constitution permanently? We’ve been attacked by terrorists many times during our history, without needing to call it a war. And torture is illegal, even in times of war. What is different now?