Monday, May 7, 2012

How Will 'Court of History' Rule on Bush Policies?

     The United States was a young and deeply divided nation in the 1790s when a Federalist-controlled Congress passed a law, the Sedition Act, that effectively allowed the government to put political opponents in jail, Bill of Rights be damned. With the laws allowed to expire after the Anti-Federalists came to power, the Supreme Court never had the occasion to rule on its constitutionality. But 160 years later, the Court declared, in New York Times v. Sullivan (1964), that “the attack on the validity of the law has carried the day in the court of history.”
    In the early 2000s, the United States was deeply divided as a Republican president, George W. Bush, with the acquiescence of a Republican-controlled Congress, adopted a series of constitutionally dubious policies for detaining, interrogating, and imprisoning suspected terrorists. With Democrat Barack Obama in the White House, many of those policies have now been discarded. But with the legal attacks on those policies deflected one after another, it now appears that a definitive verdict will come, if ever, only from the court of history.
    The latest no-decision for opponents of the Bush policies came last week (May 2) when the Ninth U.S. Circuit Court of Appeals rejected a lawsuit against John Yoo, legal architect of many of those policies. Jose Padilla, the U.S. citizen held in military custody for more than three-and-a-half years, accused Yoo of giving phony legal cover for his military jailers to subject him to torture-like interrogation and imprisonment, in violation of his constitutional rights.
    Padilla was arrested, with much hoopla, at Chicago’s O’Hare Airport on May 8, 2002, and accused of plotting to detonate a radioactive “dirty bomb” in New York City. Bush’s designation of the Brooklyn-born Padilla as an enemy combatant allowed authorities to bypass the civilian legal system and transport him instead to a military brig in Charleston, S.C.
    For nearly two years, Padilla was held incommunicado, with no contact allowed with family or lawyers. His treatment in prison, as alleged in the later lawsuit, included prolonged sleep adjustment and sensory deprivation; exposure to extreme temperatures and noxious odors;  administration of psychotropic drugs; and denial of access to necessary medical and psychiatric care. All of that, he alleged, amounted to torture, in violation of the Constitution as well as international law.
    Civil rights lawyers acting in Padilla’s behalf brought one of the early habeas corpus challenges to the Bush administration policies. Padilla’s case was skirted because of a legal technicality, but the Supreme Court ruled in a separate case in 2004 that a U.S. citizen designated as enemy combatant was entitled to some form of judicial hearing to challenge his detention. Meanwhile, the bombshell charge against Padilla seemed to evaporate. He was brought to trial instead on charges of conspiracy to commit overseas jihad, eventually convicted, and given a 17-year sentence in 2007. Prosecutors had asked for a 30-year term.
    Padilla and his mother, Estela Lebron, filed a lawsuit in federal court in South Carolina charging former Defense Secretary Donald Rumsfeld and others with violating his constitutional rights. The federal district court rejected the lawsuit on grounds of qualified immunity, the doctrine that protects government officials if their conduct did not violate “clearly established law.” The Fourth U.S. Circuit Court of Appeals affirmed that decision in January.
    Separately, Padilla and Lebron sued Yoo, now a law professor at the University of California-Berkeley, in federal court in San Francisco in January 2008. The suit alleged that as deputy head of the Office of Legal Counsel, Yoo wrote a succession of nine legal memoranda intentionally aimed at evading “well-established legal constraints” to uphold war on terrorism policies that he himself had helped craft.
    U.S. District Court Judge Jeffrey White cleared the suit against Yoo for trial in a 42-page ruling in June 2009. White, a Bush appointee, found that the treatment that Padilla alleged violated clearly established standards for treatment of citizens prisoners. In its ruling last week, however, the Ninth Circuit disagreed. The three-judge panel said that it was “not beyond debate” that citizens detained as enemy combatants were entitled to the same rights in prison as citizens charged with ordinary crimes. The appellate judges also said that even though citizens are protected against torture, it was “not clearly established” that the treatment Padilla alleged amounted to torture.
    In his opinion for the court, Judge Raymond Smith, a Clinton appointee, noted that the court reached its decision without regard for “the wisdom of Yoo’s judgments.” Smith noted at the end that the Justice Department’s ethics unit in 2010 had concluded that Yoo “exercised poor judgment” but did not knowingly provide inaccurate legal advice.
    As American University law professor Stephen Vladeck noted on the blog Lawfare, the Ninth Circuit panel made the discretionary decision to skip over the question whether Padilla’s rights had been violated and rule instead on the so-called second prong of a qualified immunity decision: whether the law was clearly established at the time. The understandable but unfortunate result is to leave the legal question undetermined. It will instead be up to a later court, or perhaps the court of history, to determine whether the government may subject U.S. citizens to treatment much like the conditions regularly criticized in human rights reports on other, less freedom-loving countries.


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