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.

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2 Responses

  1. Ron Moss says:

    How can we talk about holding the Libyans accountable when we do not hold our own people accountable!!!???

  2. Howard Gilbert says:

    Padilla’s habeas litigation was before the courts during his entire 3.5 years of military detention. Lawyers representing his mother were eventually allowed to meet with him when the Second Circuit decided to issue the orders. The final outcome of all the litigation was the decision of the Fourth Circuit in Padilla v Hanft that he was detained according to the law and in agreement with two separate Supreme Court decisions. It is certainly possible to disagree with both Circuit decisions. You could claim that the Second Circuit should have immediately ordered that Padilla meet with lawyers, rather than waiting 18 months and then ordering such a meeting under the Habeas statute rather than as a constitutional right. You could argue that the Fourth Circuit was wrong and Padilla’s detention as a prisoner of war was somehow unconstitutional despite Quirin and Hamdi.

    However, a Bivens action requires a violation of constitutional rights that are clearly established at the time of the violation. The Bivens search and arrest occurred in one day. Padilla’s detention lasted through three years of court involvement, including one trip to the Supreme Court. It is irrational to assert, in the face of all this participation by various courts, that Padilla’s detention or his limited access to communication violated constitutional rights so clearly established that they meet the Bivens requirements.

    Of course, no court was told that Padilla was being tortured. Obviously, if a US citizen is tortured by US officials then this is a violation of constitutional rights and no official would be immune to a claim for damages. However, there is no actual claim of torture in the complaint. As in the text of this article, the headline reads “Accountablity for Torture”, but the details allege “prolonged isolation” and some sleep deprivation.

    Everything that happened to Padilla 24 hours a day was recorded on video, and all those DVDs have been inventoried and were made available to the defense during the criminal trial. If he was tortured there is a record of it. However, if this is actually a case of torture, why is the complaint full of garbage about violations of imaginary constitutional rights? A “right to be free of military detention guaranteed by the Fourth Amendment of the US Consitution, the Due Process Clause of the Fifth Amendment to the US Consitution, the Habeas Suspension and Treason Clauses of the US Constitution, and Article II of the US Constitution.” (quoting from the text of the Complaint).

    Since the Habeas Suspension clause prevents Congress from taking power away from the courts, it addresses a “checks and balances” question and does not create any right. Besides, Padilla was continuously litigating under habeas up to the end, and this was never suspended. Nor does the Treason clause apply except for the fact that Padilla was not charged with Treason. Article III is not typically cited as a source of individual rights, but if one is in there why not point out where it is?

    Padilla was held by the military because he was a soldier in the Army of Afghanistan captured while on active duty and engaged in a military mission of sabotage. That is why the Fourth Circuit pointed to Quirin, a 1942 case involving a US citizen who was also a soldier in the German Army captured in the US while on active duty and engaged in a mission of sabotage. Furthermore, the Supreme Court in the Hamdi decision (argued and decided on the same days as the first Padilla decision) cited Quirin and pointed out that US citizens (like Hamdi and Padilla) can be detained as prisoners of war when they join foreign armies and are captured. You can disagree with the facts as claimed, but you cannot somehow turn a dispute about evidence into a constitutional violation.

    This case asserts the violation of clear constitutional rights that were not found by the Second Circuit, the Supreme Court, or the Fourth Circuit. In the current case, the complaint cannot seem to locate these rights in any single place in the constitution, but rather seems to find them smeared somewhere across half the document including places where nobody has ever found or even suspected the existence of an individual right. There is a reference to torture, but no claim of actual torture. Maybe the judge was right and this mess should be thrown out and if there is a real issue then they could come back with a claim that makes sense.