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Accountability for Torture: The Quest Continues

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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.