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.
“You have constitutional rights – unless somebody in government claims you don’t.” bigfatmike
Very well stated, and manifestly true. However, the caveat expressed in the second clause of the sentence effectively negates the concept of rights expressed in the first clause. Therefore, the sentence, in effect, boils down to saying: “You have no constitutional rights,” because if citizens have “rights” only at the whim of the government, then the term “rights” has become strictly meaningless.
The corporate courts have permitted — indeed actively abetted — the evisceration of the Constitution through cheap semantic slight of hand, i.e., primitive word magic. Language that used to reflect reality has now become what C. S. Peirce called “senseless vocables,” or what Alfred Korzybski called “noises.”
Here is a hypothetical question: Can one be accused of being a terrorist on the basis of having posed a hypothetical question???
If not, I might pose one. Does anyone dare answer?
It seems so quiet here on what is such a important question.
I wonder why. Is it so dangerous to question the powers of the President et al??? Does no one dare to take the risk of being the first executed at his pleasure in the comfort of their own land? Are the declared servants of the law afraid to use its powers???? Have the courts already deserted their constitutional guard posts???
Does 1984 begin in 2013?
Any answers???
Or does not anyone dare to answer the old fool who sticks up his head?
Or is he so mad that the white-suited men stand at the ready outside his door even now? Or are they clad in black, combat boots, helmets. standard SWAT geared, and my hood at ready along with soporific stool pill and orange clothes with zip fastenings.
Does anybody dare??? Sound like a song title to me. Or was it a funeral march? Or a diggery dirge as they would say in Australia.
Futher,
“…under the color of law specifically intended to inflict severe ”
Now a reasonable person would think that that means the LAW has the intenttion. Right? But there is of course no such law. But the loophole is in the interpretation that the PERSON must have the intent. And any detailed procedures “FOR INTERROGATION PURPOSES” lie well concealed behind executive privilege and national security fences.
It is like the divine rights of kings. Equally inaccessble except by revolution or to nobles under the Magna Charter. We ordinaries, don’t bother challenging it.
MikeS.
Nail on the head.
As a kid I was taught that we are a nation of laws not of men. Any delusions I held of that being a true statement are gone. Its painful to watch my nation die, more painful that people are watching it happen and either saying nothing or cheering the death on under the guise of being fans of original intent.
Where do we get off lecturing China on human rights?
DEAR RAFFLAW AND DREDD.
Having previously asked about our situation visavis intl conventions on torture, and receiving no answer here, I am pleased to see it come up again.
I, with easily performed searchs (novice myself) found both the convention, the US signing reservations and interpretations.
Here are first a citation from Dredd’s comment (thank you).
And my interpretation of how the executive branch, with monopoly on foreign treaties, gets around the convention and in fact practices torture.
How, simply by interpreting one word and renaming the purpose of the interrogaition procedure.
I hope you and others will read and understand my interpretation.
It is of interest to me and perhaps others if this holds water as an explanation of the NEWSPEAK practiced on us since the Bush/Cheny/Rumsfield years.
Quote of law(?) text:
“(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;”
End Quote
I’ve read that many time before after I asked here, but did not get an answer on how the government got around the international conventions by means of reservations etc;
and by what reservations were added afterwards, and can be added whenever it is convenient to our government (ie executive branch with the approval of the Senate NB).
The answer lies in re the “and” part in the law cited.
I’m not a lawyer, but:
the law, as I understand it, and as the Justice dept interprets it means that
THE PERSON MUST IN HIS MIND HAVE THE SPECIFIC INTENT TO ………ETC. for it to be qualified as torture.
The mere act itself is not qualificaion in itself, instead it must be done in an official capacity (the Iraq prison exception), and it must be the CONSCIOUS AND SPECIFIC INTENT to do these acts with the purpose to cause etc.
How now brown cow?
Well, the government simply says the PERSON IN QUESTION HAD ONLY INTENT TO ACCESS INFORMATION AS PART OF A ROUTINE INVESTIGATION AS AUTHORIZED. HE HAD NEITHER INTENT NOR WAS THE ORDER SO FORMULATED THAT THIS WAS THE PURPOSE OF THE METHODS USED..
SO, IF YOU ARE PURE IN MIND, AND WHO WILL NOT CLAIM THAT, THEN YOUR ACTIONS ARE NOT ACTIONABLE, REGARDLESS OF THE CONSEQUENCES.
OR WHAT SAY RAFFLAW AND DREDD, OR ALL OTHERS IN EARSHOT???
Citizens in corporate oligarchy’s, run by the interactions of military and business interests don’t really have any rights. I’m just sayin……………..
Hid = his
Raff,
Isn’t this the same circuit Bebee sits in? Would that make a difference…… I think not…
I am reading a book about William O. Douglass….OMG…. Talk about one other great Sct justices….Such as the Griswold decision…. He had conflicts out the wazoo….. He rarely used stare decisis as the basis for his opinions…. He was divorced 3 times while on the bench….. Sat on boards to supplement hid income….. Amazing…..
@rafflaw “are you talking about Texas?”
Absolutely not. Texas is far to civilized to draw and quarter.
The federal government, however has drawing and quartering as an option under certain circumstance. For example when a government official says you loose your constitutional rights.
I know this is subtle and difficult to understand for some of you.
But the remaining legal questions have to do with any conceivable limitations on drawing and quartering. I, of course, have mentioned limitations related to age and mental capability.
Other points of discussion might relate to the actual activity. Could we for example draw and quarter an individual for merely buying an air line ticket? Or would the perpetrator have to understand the likely outcome of providing the airline ticket? Could we draw and quarter someone who only thought they were sending their son-in-law on a holiday?
I think you will have to admit, as a legal subject, drawing and quartering unlawful combatants is complex with many areas where reasonable individuals may disagree.
“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.”
Indeed. It also violates criminal statutes:
(The Penalty For Torture Could Be Death). So, another characteristic of America becomes “junk DNA.”
FWIW:
ACLU Press Release follows, related to the Rumsfeld case (Rumsfeld, et al., Respondents)
http://www.aclu.org/national-security/mother-jose-padilla-appeals-torture-lawsuit-us-supreme-court
Mother of Jose Padilla Appeals Torture Lawsuit to U.S. Supreme Court
April 23, 2012
FOR IMMEDIATE RELEASE
ACLU Suit Seeks to Hold U.S. Government Officials Accountable For Torture of American Citizen Jose Padilla
NEW YORK – The mother of a U.S. citizen accused of being an “enemy combatant” and the American Civil Liberties Union today asked the U.S. Supreme Court to reinstate a lawsuit against former Defense Secretary Donald Rumsfeld and other officials for their roles in the torture of her son in a South Carolina military prison.
In January, the U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s dismissal of the case brought by Estela Lebron on behalf of her son, Jose Padilla.
“If the appeals court’s ruling is allowed to stand, government officials will have a blank check to commit any abuse in the name of national security, even the brutal torture of an American citizen in an American prison,” said Ben Wizner, the ACLU attorney who argued the case before the Fourth Circuit. “It is precisely the role of the courts to ensure that allegations of grave misconduct by Executive Branch officials receive fair adjudication. That vital role does not evaporate simply because those officials insist that their actions are too sensitive for judicial review.”
Padilla was taken from a civilian jail in New York in 2002 by military agents, declared an “enemy combatant” and secretly transported to the Naval Consolidated Brig in Charleston, S.C. He was imprisoned without charge for nearly four years, subjected to extreme abuse and was unable to communicate with his lawyers or family for two years. The illegal treatment included forcing Padilla into stress positions for hours on end, punching him, depriving him of sleep and threatening him with further torture and death.
“Tell me where in the Constitution it says that torturing Americans is acceptable,” said Lebron. “You don’t even treat an animal the way my son was treated. If they can do this to Jose, they can do it to anyone. I’m going to continue fighting until justice has been done for my son.”
Attorneys on the case are Wizner, Alexander Abdo, Jameel Jaffer, Hina Shamsi and Steven R. Shapiro, of the ACLU; Jonathan Freiman, Hope Metcalf and Tahlia Townsend of the Allard K. Lowenstein International Human Rights Clinic at Yale Law School; and Michael O’Connell of the law firm Stirling & O’Connell.
Today’s appeal filing is available at:
http://www.aclu.org/files/assets/padilla_supremect_appeal.pdf
“Isn’t that view amazing… You have constitutional rights – unless somebody in government claims you don’t.” -bigfatmike
That’s the way it works, given what I’m seeing. Some people just don’t realize it, yet.
Jose Padilla’s mother: “Tell me where in the Constitution it says that torturing Americans is acceptable,” said Lebron. “You don’t even treat an animal the way my son was treated. If they can do this to Jose, they can do it to anyone. I’m going to continue fighting until justice has been done for my son.”
Words to remember: “If they can do this to Jose, they can do it to anyone.” “…they can do it to anyone.”
Bigfatmike,
are you talking about Texas?
I know courts don’t generally answer hypotheticals.
But I do wonder are there any limitations on drawing and quartering. Could we for example draw and quarter a retarded 13 year old.
Of course I referring to a hypothetical retarded 13 year old who had been properly declared an unlawful enemy combatant.
Of course this is relevant. We know for a fact that war lords sometimes intentionally recruit children. Our clear policy regarding drawing and quartering may very well have a deterrent effect on child warriors.
I mean, really? Really? I know that’s not the most articulate of responses, but others have and will say “really?” in a more sensible fashion. I just wish that our current President was any better. He should be, but he’s not, at least in regard to constitutional protections. Bush started it, and he should frankly be in jail for it, but Obama hasn’t exactly bent over backwards to stop this kind of junk.
George W. Bush, Cheney, federal attorneys, congress, supreme court, all need a trip to the wood shed. They are disgraceful, fearful, lack of fortitude, integrity,and self respect. I would free all the people in Guantanamo and other jails and put Bush, Cheney, and others for in jail for war crimes. Torture is a crime. Indefinite incarceration is a crime. Period.
I think some of us who are not lawyers would argue that the law has been crystal clear since 1947.
And further that since 1947, judges who ignore their clear obligations, may subject themselves to lawful prosecution as well.
This is serious stuff. I don’t think that a claim ‘its really subtle and hard to figure out’ is going to wash.
The good news is there is not statute of limitations.
If you think my remarks are frivolous, then let Yoo, Cheney and a few others schedule a vacation in Europe. Then well see who understands the implications of the law and who is making it up as they go along.
Isn’t that view amazing… You have constitutional rights – unless somebody in government claims you don’t.
Isn’t this called circular reasoning?
We call it the George Zimmerman doctrine.
And I thought that when Jethro Gibbs on NCIS shouts, “You’re a terrorist and you have no rights!” it was just dramatic license. Now it seems that he is on the cutting edge of constitutional law.