Judge Disallows Padilla Torture Suit Because He Was Tortured?

Submitted by Lawrence Rafferty, (rafflaw), Guest Blogger


You may have missed this story in the corporate media.   It is an issue that is near and dear to my heart.  It seems that a Federal Judge has dismissed a case brought by Jose Padilla and others against Donald Rumsfeld and other Bush administration officials, for a very interesting reason. 

“Here’s the main thrust of Judge Richard Mark Gergel’s decision to dismiss Jose Padilla’s Bivens suit against Donald Rumsfeld and other high level Bush officials who denied him his Constitutional rights.  “The Court finds that “special factors” are present in this case which counsel hesitation in creating a right of action under Bivens in the absence of express Congressional authorization. These factors include the potential impact of a Bivens claim on the Nation’s military affairs, foreign affairs, intelligence, and national security and the likely burden of such litigation on the government’s resources in these essential areas. Therefore, the Court grants the Defendants’ Motion to Dismiss (Dkt. Entry 141) regarding all claims of Plaintiffs arising from the United States Constitution.”  Basically, the “special factors” in this case mean Padilla can’t sue for having been tortured and denied counsel.” Firedoglake

Just so you have all the facts, here is Judge Gergel’s full decision.  I have also provided a link to the Bivens case that created the action that the Padilla case was attempting to utilize to sue Rumsfeld, et al. Bivens  It is a shame that a plaintiff’s case can be dismissed because it might be too “messy” for the government to actually have to admit that they tortured someone! 

Two questions come to mind after reading the Padilla and Bivens decisions.    When will the Obama Department of Justice follow the rule of law and allow victims to sue for the illegal torture that the Bush Administration ordered and  authorized?  Was Judge Gergel correct in dismissing the case on the grounds that he stated?  I am sure that you might have some more questions.

At least now I understand why the Republicans didn’t filibuster this judge when President Obama nominated him for the seat.

30 thoughts on “Judge Disallows Padilla Torture Suit Because He Was Tortured?”

  1. Editorial

    Holding Rumsfeld Accountable
    Published: August 13, 2011


    “In a courageous decision last week, a federal appellate court ruled that two Americans who say they were tortured by American military forces in Iraq in 2006 can sue former Secretary of Defense Donald Rumsfeld and others for violating their constitutional rights.

    Times Topic: Donald H. Rumsfeld

    The case involves Donald Vance and Nathan Ertel, who went to Iraq to work for an American security firm and became whistleblowers when Mr. Vance grew suspicious that the company was involved in illegal activity, including weapons trafficking. They were detained by the military for three months and six weeks, respectively.

    The opinion by Judge David Hamilton of the United States Court of Appeals for the Seventh Circuit recounted their “well-pled allegations” that while in custody they were “physically threatened, abused, and assaulted by the anonymous U.S. officials working as guards.” The government eventually released them, without explanation or charging them with any crime.

    The case is important because it makes clear — for the first time — that government officials can be held accountable for the intentional mistreatment of American citizens, even if that conduct happens in a war zone. (Sadly, there remains no accountability for the abuse, and torture, of foreigners by American jailers and interrogators, which Mr. Rumsfeld and President George W. Bush personally sanctioned.)

    In allowing the suit to go forward, the court said the plaintiffs had alleged facts showing “that it is plausible, and not merely speculative, that Secretary Rumsfeld was personally responsible for creating the policies that caused the alleged unconstitutional torture,” and that he “acted with deliberate indifference by not ensuring that the detainees were treated in a humane manner despite his knowledge of widespread detainee mistreatment.”

    The court rejected what it called the “unprecedented breadth” of the argument put forward by Mr. Rumsfeld and other defendants — that no government or military employee could ever be sued by American civilians for torture or even murder in a war zone. The court made plain that the wrongdoing alleged “violates the most basic terms of the constitutional compact between our government and the citizens of this country.”

    Judge Hamilton said further that granting Mr. Rumsfeld and others immunity from lawsuits “would amount to an extraordinary abdication of our government’s checks and balances that preserve Americans’ liberty.”

    The ruling relies on the landmark Bivens case, which allows citizens to sue officials for damages for violating their constitutional rights and is a powerful, though limited, remedy against government wrongdoing. This decision gives Mr. Vance and Mr. Ertel a chance to prove their case and vindicate their rights.”

  2. Citizens for Responsibility and Ethics in Washington(CREW) and National Security Archive(NSA) filed a suit against the EOP for email and records…and the judge ordered a settlement…. http://www.gwu.edu/~nsarchiv/news/20091214/index.htm

    my case against the EOP was for emails and documents during the same time period as CREWS and NSAs suit, but the judge ruled against me….is the judiciary subject to political manipulation…see my suit on FBI wiretapping the Supreme Court… w.voinche v. FBI, 940 F.Supp. 323(DDC 1996)….no this is Amerika….

  3. Has professor Turley taken any cases on US government torture or harrassment??? Any cases or information on published reports of the US government list of Amerikan citizens that have been put on an assassination list???? I have filed numerous cases for records under FOIA, Privacy act, federal records act, administrative procedure act for FBI wiretapping and other harrassment…would mr. turley be interested in assisting me with this case?…voinche v. fbi, 46 F.Supp. 2nd p. 29(DDC 1999)and other cases on the fbi wiretapping the supreme court

  4. Thanks for the reply. Sorry, this type of use implies (at least to me) there is some sort of legal version available, exactly what the Bush-team is trying to sell to the public. That is what I suspect those visiting/writing here would not want to happen. Hence the comment 🙂

    Anyway, like this post.


  5. mespo:

    You are correct, I never have been. But I’m going by the information of those concerned with such matters and know what is happening. Like the ACLU


    Or this group:


    Crime has become a good money-making racket for government to guarantee, for its participants, job security. Sadly, the biggest criminals in America are now lawyers, cops, and judges who administer this system of cruel punishment.

    Especially the cops, most of whom appear to be no better than Middle East dictators. If they weren’t arresting everything in sight and LYING about resisting arrest and other matters, we wouldn’t see so many people going into the system in the first place. People immediately lose their jobs and this destroys families. No matter. That just makes more targets for arrest.

    Cops are making as many people as they can into criminals. It guarantees their jobs and they know it. Once arrested, that person will be tracked for life and hounded by the government forever. This employs a lot of people. And they want more people to have felonies. It’s their anti-gun rights drive.

    Those with records will also earn less income over time and it never allows them to get a new start or second chance. Cops are happy about this because of its latent potential for future job security. But it is a tad counterproductive because it is actually reducing the earning power of the populous who pay for the lavish benefits and retirement packages of these monsters.

    Not to worry. Cops found the way to overcome the lower earning power of the public they have arrested: arrest more in greater numbers. Create a greater supply to make up for the temporary loss of revenue. Call it supply and demand.

    Thus a greater number of criminals has to be attained to cover the loss of earning power from making criminals out of every Tom, Dick, and Harry. Whatever that number is, we only know when it is too low when locals start whining and crying about the need for more money to fund the cops. At this point they extort it from us by scaring women and children. Real brave. And then it is back to arresting more citizens for nothing to prove how bad crime is.


  6. Nescio,
    Any torture is illegal, but I insert Illegal in front of torture to remind people that the Bush Administration tried to legalize it through the OLC memos.

  7. If Obama were a decent person, then he could at least settle the case and give Padilla a few million dollars. That way he would avoid a “messy” trial and continue to pretend that the U.S. has never done anything wrong.

  8. Obviously… Not enough damage…..


  9. At least now I understand why the Republicans didn’t filibuster this judge when President Obama nominated him for the seat

    The question then is in whose best interested did Obama nominate someone with this mind set.
    Who is the Judge protecting, not and in the future.

    Like maybe a President who continues two illegals war, illegal renditions, and illegal torture?

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