Guest Post: Jose Padilla and the Rule of Law – Recalling Recent History

This week the US appellate court for the 9^th circuit held that John Yoo, primary author of several ‘torture memos’ for the George W. Bush Justice Department after 9/11, could not be sued by Jose Padilla who had been treated harshly in a South Carolina military prison as an alleged unlawful enemy combatant. Padilla, a dual national and US citizen, was held in prolonged solitary confinement – without habeas corpus and access to legal counsel – and otherwise mistreated to the point that even his military jailers recognized the serious deterioration of his mental health. Yet the judges of the 9^th Circuit refused to grant him legal relief. So much for the canard that the 9^th circuit, sitting in  ‘The Peoples Republic of San Francisco,’ is the most liberal court in the country and out of step with other legal judgments.

This is but one in a series of judicial opinions in which various US courts have declined to protect the rights of suspected terrorists under national and international law, have refused to grapple seriously with the US practice of torture, and have failed to systematically reign in an over reaching Executive authority – despite one or two rare cases to the contrary.

A couple of points are worth recalling. First, when interviewing prisoners transferred from the CIA secret prisons in 2006, the International Committee of the Red Cross (ICRC) concluded some had been tortured. Contrary to some allegations, the ICRC is credible and cautious and the most respected inspector of prisons around the world, and has been since the First World War. It does not lightly conclude that torture has been committed. On a regular basis, both American political parties support financial contributions to the ICRC, such is its reputation as the ‘gold standard’ of humanitarian action.

Second, a US official concluded that Mohamed al-Qatani, a suspected terrorist involved in the 9/11 plot, had been tortured at Guantanamo and therefore could not be tried, even in a military commission. A US Army report (the Schmidt report), looking at the same interrogation, recommended that the Gitmo commander, Lt. Gen. Geoffrey Miller, should be sanctioned for improper control of that process. That Bush officials ignored this report does not undermine its integrity.

So while some former Bush officials and former CIA officials continue to argue that US ‘enhanced interrogation techniques’ did not rise to the level of torture, several other respected authorities, some of them American, beg to differ.

In the Padilla case, a US citizen was stripped of his constitutional rights by Executive decision. There is absolutely nothing in the 2001 Authorization to Use Military Force indicating that Congress intended to authorize this kind of sweeping and pernicious grant of legal authority to the President. After 9/11 there were numerous cases of mistakenidentity and wrongful abuse of prisoners, with the Maher Arar (Canadian citizen) andKhaled al-Masri (German legal resident) cases being only two of many. Both were tortured, the first by the Syrians with US complicity, and the second by Americans. Yet the 9^th Circuit avoided all these issues that were resurrected, directly or indirectly, by the Padilla case.

Padilla of yesteryear could be any US citizen tomorrow – stripped of constitutional protections, abused and then finally put into the criminal justice system to face a differentset of charges with allegations of being an unlawful enemy combatant simply dropped at the discretion of the Executive. Moreover, a growing body of scientific evidence supports the contention that prolonged solitary confinement per se creates mental anguish and deterioration—severe mental pain in legal terminology.

Yet the Obama Administration simply ‘moves on,’ ‘looks forward,’ and refuses to address many if not most of the problems associated with the ‘enhanced interrogation techniques’ of the past. At the same time, in the UN Human Rights Council, the Obama team recently pressed Sri Lanka to do what Washington refuses to do itself, namely to address seriously allegations of violations of human rights and humanitarian law (aka laws of war) stemming from past conflicts. In Washington, past illegal action is ignored while double standards are blatantly advanced.

Given these political signals from a supposedly progressive or liberal Administration, it is perhaps not surprising that even the 9^th Circuit continues the national tradition of judicial deference to the Executive in most alleged national security cases. It can be unfortunately recalled that the US Supreme Court approved the arbitrary detention of many Japanese legal residents and Japanese-American citizens during World War Two, and the loss of their private property, for which the Congress apologized and paid reparations some 40 years later.

Once again a US court has taken the wrong path. Padilla was not innocent of material support for terrorism. But who can say which innocent American will be victimized, and tortured, in the future?

David P. Forsythe, emeritus professor at the University of Nebraska-Lincoln, is the author of The Politics of Prisoner Abuse: The United States and Enemy Prisoners after 9/11(Cambridge University Press, 2011).