Taking On Torture

As the debate continues over whether President Obama will seek criminal prosecutions against former Bush administration officials for authorizing and carrying out torture and cruel, inhumane and degrading treatment of detainees, one of the victims is taking the law into his own hands.

Jose Padilla, an America citizen labeled an "enemy combatant" by Bush, has filed an unprecedented civil lawsuit against John Yoo, former deputy attorney general in the Office of Legal Counsel, seeking $1 in damages and a declaration that Yoo violated his constitutional rights.

On June 12, in the first court ruling addressing Yoo's role in the "war on terror," U.S. District Judge Jeffrey S. White, a Bush appointee, denied Yoo's motion to dismiss the suit. White, quoting Alexander Hamilton, wrote: "[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free."

For White, the task was to "strike the proper balance of fighting a war against terror, at home and abroad, and fighting a war using tactics of terror."

Padilla was arrested in 2002 at Chicago's O'Hare Airport. After Bush declared him an enemy combatant, Padilla was transported to a naval brig in Charleston, S.C., where he was detained for three years and eight months, without charges or access to legal counsel.

We hear much about the abuse of detainees in Guantanamo and in secret CIA prisons around the world, but few are aware of the torture that is alleged to have occurred right here in America. Padilla and his legal counsel have alleged numerous abuses.

While he was detained, government officials subjected Padilla to interrogation tactics and policies such as: extreme and prolonged isolation; deprivation of light and exposure to prolonged periods of artificial light, sometimes in excess of 24 hours; extreme and deliberate variations in temperature; sleep adjustment; threats to subject him to physical abuse, including threats to cut him with a knife and pour alcohol into the wounds; threats to kill him immediately; threats to transfer him to a foreign country or Guantanamo, where he was told he would be subjected to far worse treatment; making him believe that he was being administered psychotropic drugs against his will; shackling and manacling for hours at a time; forcing him into stress positions; requiring him to wear earphones and black-out goggles during movement to, from and within the brig; introduction into his cell of noxious fumes that caused pain to the eyes and nose; lying to him about his location and the identity of his interrogators; government agents banging on the walls and bars of his cell or opening and shutting the doors to nearby empty cells; withholding of a mattress, pillow, sheet or blanket, leaving him with nothing to sleep or rest on except a cold steel slab; forced grooming; sudden and unexplained suspension of showers; sudden and unexplained removal of religious items; constant surveillance, including during the use of toilet facilities and showers; deprivation of access to any form of information about the outside world, including radio, television and newspapers from the time of his imprisonment until summer 2004, at which time he was allowed very limited access to such materials; denial of sufficient exercise and recreation and, when permitted intermittently, only in a concrete cage and often at night; denial of any mechanism to tell time in order to pray in keeping with the Muslim practice; denial of access to the Koran for most of his detention and complete deprivation or inadequate medical care.

According to the lawsuit, Yoo was "the de facto head of war-on-terrorism legal issues" and a "key member of a small, secretive, and highly-influential group of senior administration officials know as the 'War Council.'" As Yoo admits in his book, "War By Other Means," he "developed an extrajudicial, ex parte assessment of enemy combatant status followed by indefinite military detention, without notice of opportunity for a hearing of any sort ... completely preclud[ing] judicial review of the designation."

Declining Yoo's request to abstain, the court noted "the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla's allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power."

Notably, the court pointed out that like any other government official, "government lawyers are responsible for the foreseeable consequences of their conduct." For example, in Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006), the court found an assistant city attorney liable where she researched the law and drafted a letter denying a protest group's application for a parade permit based on the content of their speech.

Although senior city officials revised the letter, and others approved and eventually signed the denial of the permit, the court found that the drafting of a legal opinion justifying unconstitutional conduct was "a substantial factor" in the decision to deny the parade permits and violated the plaintiffs' First Amendment rights.

Similarly, in Anoushiravani v. Fishel, 3:2004CV00212 (D. Ore. July 19, 2004), in denying a motion to dismiss by two Department of Homeland Security attorneys who advised customs agents that they could constitutionally refuse to release seized property, the court held that the attorneys could be liable for their personal participation in the deprivation of constitutional rights because the seizures were a foreseeable result of their legal advice, citing United States Securities and Exchange Commission v. Fehn, 97 F.3d 1276 (9th Cir. 1996), in which the court found that a awyer may be liable for substantially assisting in a violation of the law by issuing advice in violation of the law.

According to the complaint, Attorney General John Ashcroft relied on Yoo's opinion in recommending that Padilla be taken into military custody. Yoo allegedly has represented that "he had security clearance to, and in fact did, 'read the intelligence reports' on Mr. Padilla before purporting to provide legal authority for Mr. Padilla's designation and detention."

Following a meeting of the War Council in July 2002 in which Yoo and fellow council members "'discussed in great detail how to legally justify' 'pressure techniques proposed by the CIA,' including waterboarding, mock burial, and open-handed slapping of suspects, [Yoo] wrote his August 1, 2002 memo, stating that acts of interrogation would not constitute torture unless they caused pain 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'"

Padilla alleges that Yoo "intended or was deliberately indifferent to the fact that Mr. Padilla would be subjected to the illegal policies [Yoo] set in motion and to the substantial risk that Mr. Padilla would suffer harm as a result. [Yoo] personally recommended Mr. Padilla's unlawful military detention as a suspected enemy combatant and then wrote opinions to justify the use of unlawful interrogation methods against persons suspected of being enemy combatants. It was foreseeable that the illegal interrogation policies would be applied to Mr. Padilla, who was under the effective control of the U.S. Southern Command - the same military authority that controlled Guantanamo - and was one of only two suspected enemy combatants held at the Brig."

The court held that "the specific designation as an enemy combatant does not automatically eviscerate all of the constitutional protections afforded to a citizen of the United States."

While it remains to be seen whether Obama will have the courage to go beyond his lofty rhetoric that no one is above the law, the first real opportunity to hold a key Bush lawyer accountable for his direct participation in the discredited and shameful program of torture and abuse may well come from a man who was himself victimized by that very program.

Stephen Rohde, a constitutional lawyer and author, is chair of the ACLU Foundation of Southern California and president of Interfaith Communities United for Justice and Peace.