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. rafflaw,

    “Taking the money out of the campaigns would be a monumental step in the correct direction.”


    ” This is one of the reasons I’ve said we no longer have a legitimate government since Citizens United. That abomination of a case is simply the sales receipt for finally selling out democracy completely to the corporatists-fascists.”


    Corporate money helped defeat Russ Feingold in Wisconsin–and the Kochs were the second biggest contributors to Gov. Scott Walker’s campaign.

  2. I don’t think this will ever go forward (and it should). I would like to see lawyers, judges, and prison officials tried for torturing prisoners.


  3. I’d love to hear what the prof has to say about Bahrain and the little incident there.

  4. raff,

    I’m pretty sure it is a critical step. This is one of the reasons I’ve said we no longer have a legitimate government since Citizens United. That abomination of a case is simply the sales receipt for finally selling out democracy completely to the corporatists-fascists.

    And if there is one thing I truly hate, it’s fascists.

  5. raff,

    The Rule of Law would be the default position for any administration once the politicians are ripped away from the corporatist-fascist nipple that is campaign finance.

    And you are most welcome.

  6. Thanks Buddha! It still amazes me that the Rule of law is not the default position for any administration, let alone a so-called progressive administration.

  7. raff,

    What mespo said.

    Truly an outstanding job exposing the lies, hypocrisy and corruption in continuing to resist the criminal and civil prosecution of the Bush Administration.

  8. rafflaw,

    There’s so much that the corporate media doesn’t inform us about. Glenn Greenwald had an excellent article on the subject a couple of days ago at Salon.

    From Glenn Greenwald (2/18/11)
    U.S. Justice v. the world

    Yesterday, in South Carolina, an Obama-appointed federal judge dismissed a lawsuit brought by Padilla against former Bush officials Donald Rumsfeld, John Ashcroft, Paul Wolfowitz and others. That suit alleges that those officials knowingly violated Padilla’s Constitutional rights by ordering his due-process-free detention and torture. In dismissing Padilla’s lawsuit, the court’s opinion relied on the same now-depressingly-familiar weapons routinely used by our political class to immunize itself from judicial scrutiny: national security would be undermined by allowing Padilla to sue; “government officials could be distracted from their vital duties to attend depositions or respond to other discovery requests”; “a trial on the merits would be an international spectacle with Padilla, a convicted terrorist, summoning America’s present and former leaders to a federal courthouse to answer his charges”; the litigation would risk disclosure of vital state secrets; and “discovery procedures could be used by our enemies to obtain valuable intelligence.”

    In other words, our political officials are Too Important, and engaged in far Too Weighty Matters in Keeping Us Safe, to subject them to the annoyance of the rule of law. It’s much more important to allow them to Fight The Terrorists without restraints than to bother them with claims that they broke the law and violated the rights guaranteed by the U.S. Constitution. That’s the mentality that has resulted in full-scale immunity for both political and now private-sector elites in a whole slew of lawbreaking scandals — from Obama’s refusal to investigate Bush-era crimes or high-level Wall Street criminality to retroactive immunity for lawbreaking telecoms and legal protection for defrauding mortgage banks. With very few exceptions — yesterday’s ruling, for instance, brushed aside a contrary decision from a Bush-43-appointed federal judge in California last year that refused to dismiss Padilla’s lawsuit against John Yoo for having authorized his torture (that decision is on appeal) — Executive Branch officials and the federal judiciary have conspired to ensure that the former are shielded from judicial scrutiny even for the most blatant and horrifying crimes.

    There are legalistic questions involved in cases such as the one brought by Padilla — i.e., whether courts should allow monetary damages to be sought against government officials for Constitutional violations in the absence of a Congressional statute (a “Bivens” claim) and whether such officials should enjoy “qualified immunity” for their illegal acts where the illegality is unclear (as Rumsfeld absurdly alleged the torture of Padilla was) — but one key fact is not complex. Not a single War on Terror detainee has been accorded any redress in American courts for the severe abuses to which they were subjected (including innocent people being detained for years, rendered and even tortured), and worse, no detainee has been allowed by courts even to have their claims heard. After the U.S. Government implemented a worldwide regime of torture, lawless detention, and other abuses, the doors of the American justice system have been slammed shut in the face of any and all victims seeking to have their rights vindicated or even their claims heard. If an American citizen can’t even sue political officials who lawlessly imprison and torture him in his own country — if political leaders are vested with immunity from a claim of this type — what rational person can argue that the rule of law or the Constitution binds our government officials?

  9. Great work in calling attention to the Emperor’s “new clothes” there rafflaw.

  10. eniobob,
    You are absolutely correct! The are also related because the Ghailani verdict proves that Federal Courts can handle the mess that the torture guys created.

  11. raff:

    My apples and oranges,Padilla can’t sue because he was” tortured”

    Ghailani had 279 counts dismissed because he was “tortured”

    Congressman Peter Kings reaction at the time on Ghailani,and I guess it would be the opposite for the Padilla ruling.

  12. eniobob,
    Thanks for the link, but it is apples and oranges, I believe. The Bivens decision from 1971 allows suits against government officials in certain cirmcstances.

  13. Maybe apples and oranges:

    “Ghailani’s case, because of the earlier trial, was supposed to be a lay-up. But the passage of time and complications stemming from Bush-era interrogation techniques ended up making the case a closer call. The New York jury acquitted Ghailani of more than 280 counts of murder and conspiracy, and found him guilty of a single count of conspiracy. The verdict was nothing if not controversial”


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