Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger
We haven’t heard his name for quite some time now, but former Bush-era Office of Legal Counsel attorney, John Yoo is in the news again. The United States 9th Circuit Court of Appeals threw out an appeal by convicted terrorist, Jose Padilla attempting to hold Yoo liable for the torture used on Padilla while in U.S. detention centers.
Believe it or not, the Justices stated that the law on what constituted torture was not clear when Padilla endured the Bush Enhanced Interrogation methods. “A three-judge panel of the court said laws governing combatants and the definition of torture were unclear during the years policies were crafted. Padilla alleged he was subjected to death threats, given psychotropic drugs, shackled and manacled for hours at a time, denied contact with family or a lawyer for 21 months and refused medical care for potentially life-threatening conditions. “That such treatment was torture was not clearly established in 2001-03,” Judge Raymond C. Fisher, a Clinton appointee, wrote for the court.” LA Times
Is it just me or does it confuse and upset anyone else that Prof. Yoo, as an OLC attorney can decide for the country what actions constitute torture and when sued for those torture techniques, the Court claims that because of those very same rules declared by Emperor Yoo, the methods employed against Padilla were not established as torture? It sounds like Prof. Yoo made up the rules of the game and is now hiding behind those very same rules.
“The 9th Circuit’s ruling said the U.S. Supreme Court did not declare until 2004 that citizens held as enemy combatants have constitutional rights. Even now, the 9th Circuit said, “it remains murky whether an enemy combatant detainee may be subjected to conditions of confinement and methods of interrogation that would be unconstitutional if applied in the ordinary prison and criminal settings.” LA Times
Did the Court forget that Mr. Padilla was a United States citizen when he was detained and tortured by government officials? Wasn’t it patently unconstitutional to hold a citizen for 21 months without contact with an attorney or family members or a charge? Here is how the court answered that question.
“The court said that someone designated as an enemy combatant by the president – regardless of whether he is a US citizen or not – is not automatically entitled to full constitutional protections. “Padilla was not a convicted prisoner or criminal defendant; he was a suspected terrorist designated an enemy combatant and confined to military detention by order of the president,” the court said. “He was detained as such because, in the opinion of the president … Padilla presented a grave danger to national security and possessed valuable intelligence information.” “We express no opinion as to whether those allegations were true, or whether, even if true, they justified the extreme conditions of confinement to which Padilla says he was subjected,” Fisher wrote. “In light of Padilla’s status as a designated enemy combatant, however, we cannot agree with the plaintiffs that he was just another detainee” entitled to full constitutional protection.” Christian Science Monitor
I realize that these issues are not new. Allowing for one person, even any President, the ability to rescind normal constitutional guarantees for United States citizens seems not only dangerous, but unconstitutional. How can I, as a citizen, lose my constitutional protections just when I need them the most? I contend that the 9th Circuit Court of Appeals missed an opportunity to right a wrong that could impact every citizen. Prof. Yoo created the rules that these justices used to exempt Yoo from liability for his scurrilous definitions of torture.
Shouldn’t that have rang a warning bell in the minds of these justices? What do you think? Did the 9th Circuit Court of Appeals make an error? Let us know what you think!
The full 9th Circuit Court of Appeals decision can be found here.