Accountability for Torture: The Quest Continues
South Carolina district judge Richard Gergel’s recent dismissal of Jose Padilla’s civil suit is the latest—and arguably most egregious—ruling denying a remedy to victims of human rights abuses in the “war on terror.”
Padilla, of course, is the U.S. citizen who was arrested in Chicago in May 2002 and declared an “enemy combatant.” Padilla would spend three-and-one-half-years imprisoned at the navy brig near Charleston, South Carolina, where he alleges he was subjected to prolonged isolation, sleep and sensory deprivation, and other mistreatment.
The Supreme Court never addressed the merits of Padilla’s military detention. In 2004, it dismissed Padilla’s first habeas case on technical grounds, requiring that it be re-filed in South Carolina where Padilla was then confined (the case had originally been filed in New York). In 2005, the government mooted Padilla’s second habeas challenge by criminally charging Padilla when the Supreme Court was on the verge of deciding whether to hear it. This left a damages suit as the only vehicle for the courts to address Padilla’s mistreatment.
In dismissing the suit, Judge Gergel held that Padilla could not invoke the ordinary remedy for the violation of his constitutional rights by federal officials under Bivens v. Six Unknown Named Agents. Gergel relied on language from Bivens noting that a judicial remedy might not be appropriate if there are “special factors counseling hesitation in the absence of affirmative action by Congress.” The Second Circuit reached a similar conclusion in rejecting the Bivens lawsuit of Maher Arar, the Canadian citizen rendered from NY’s JFK Airport to Syria for torture.
Padilla’s case falls within the heartland of the kind of government misconduct Bivens was meant to remedy. If anything, the violation of Padilla’s constitutional rights was much more egregious than in Bivens, where federal drug enforcement agents “merely” arrested the plaintiff and searched his home without a warrant.
Gergel concluded that Padilla had no cause of action under Bivens because his military detention involved a novel context. The Supreme Court, however, has cautioned that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Here, the defendants should have known that Padilla’s prolonged incommunicado detention, isolation, and abusive treatment violated core constitutional protections, regardless of the “enemy combatant” label he had been assigned.
Under Gergel’s reasoning, courts should never infer a cause of action for constitutional violations in any new situation; Congress must instead provide a judicial remedy. But the whole point of Bivens is to supply a judicial remedy for constitutional violations where none otherwise exists—where, as Justice Harlan put it, it is “damages or nothing.”
Equally troubling is Gergel’s explanation why the law prohibiting Padilla’s mistreatment was not clearly established. In finding that Donald Rumsfeld and the other defendants were entitled to qualified immunity, Gergel pointed to division in the government over the use of harsh interrogation methods and cited Justice Department approval of those methods.
But the law prohibiting torture and other cruel, inhuman, and degrading treatment was clearly established under the Constitution as well as under international law. Even assuming the validity of Padilla’s detention as an “enemy combatant” (a highly dubious proposition, as the government’s own handling of his case shows), his abuse violated established standards for the treatment of prisoners in military custody. That the Justice Department may have sought to sanction those techniques—through a series of discredited memos—means only that the attorneys who drafted them got the law seriously wrong, not that the law wasn’t clear.
Gergel’s decision isn’t the last word. A district judge in California denied the government’s motion to dismiss Padilla’s parallel suit against John Yoo. (That ruling is now on appeal to the Ninth Circuit). Moreover, Padilla’s claims against Rumsfeld et al. may fall on more sympathetic ears in the Fourth Circuit, which narrowly divided on the legality of domestic military detention in the al-Marri litigation and issued a blistering rebuke to government for its handling of Padilla’s habeas case.
As a U.S. citizen arrested in the U.S., Padilla presents compelling arguments for courts to reject the government’s call for dismissal and to reach the merits. If Jose Padilla has no remedy for his abuse in military custody, it is unlikely anyone does.