Jose Padilla Brings Torture to Trial
Cassel, Douglass, In These Times
Can a DOJ lawyer be held accountable for advocating the inhumane?
WHEN ON JAN. 22 a federal court judge sentenced Jose Padilla to 17 years in prison for conspiracy to commit terrorism, it was a one-day story. But, in fact, the Padilla case goes on.
Padilla, a US. citizen and former Chicago gang member, alleges that he was tortured during the more than three and a half years he spent behind bars at a Navy brig in South Carolina. He is now suing John Yoo, the former Justice Department lawyer who reportedly devised the legal theories to justify the interrogation techniques used against him.
While Padilla's suit raises a number of constitutional claims-including that the military violated his rights to counsel and to exercise his Muslim religion-the heart of his argument is that Yoo gave legal advice to justify his torture, in violation of due process of law as guaranteed by the Fifth Amendment to the Constitution.
Padilla, who is separately appealing his recent conviction, asks the court to rule that his treatment violated the Constitution, and to order Yoo, now a law professor at the University of California at Berkeley, to pay him $1 in damages.
The suit raises important questions of law and fact. Are lawyers liable for giving bad legal advice to federal officials?
In August 2002, Yoo, then an attorney in the Justice Department's Office of Legal Counsel, wrote a formal opinion letter advising that interrogation techniques are not torture unless they inflict pain equivalent to "organ failure, impairment of bodily function or even death." The new head of the Office of Legal Counsel, Jack Goldsmith, later withdrew Yoo's opinion.
Goldsmith, now a Harvard law professor, explains in his book, The Terror Presidency, that Yoo's reasoning was "legally flawed" and "tendentious? It seemed "more an exercise of sheer power than reasoned analysis? Even so, was it the proximate cause of any mistreatment of Padilla?
However such questions are resolved, Padilla's allegations of his treatment, if true, ought to shame a civilized society.
Padilla charges he was imprisoned in a seven-foot by nine-foot cell in the Navy brig in Charleston, S.C., for nearly four years. For the first 21 months, he says he was denied all contact with anyone outside the brig, including family and lawyers, leaving him with interrogators and guards as his only human contact.
He alleges he was allowed no watch or clock, nor any news about the outside world. The only window in his cell was blacked out. When he was allowed out of his cell, his eyes and ears were covered.
Periodically, he says, he was subjected to absolute light or darkness for periods in excess of 24 hours. He was subjected to extreme temperature variations in his cell, where his bed consisted of a cold steel slab with no mattress, pillow or blanket. He says brig guards and others deliberately banged on his walls and bars at all hours of the night For hours at a time, he says guards kept him shackled and manacled, or forced him to sit or stand in uncomfortable and painful positions.
Worse, his interrogators allegedly threatened to cut him with a knife and pour alcohol in the wounds. He says they also threatened to kill him, or send him to a country where they said he would receive far worse treatment Against his will, they allegedly administered chemicals, which Padilla believes were psychotropic drugs.
When his lawyers were finally allowed access to him, he was not permitted to tell them about prison conditions.
If Padilla's allegations are true, they qualify as torture under international law: the intentional infliction of severe physical or mental pain for purposes such as interrogation. The U.N. Committee on Torture and the Inter-American Court of Human Rights have held that incommunicado detention-even for periods far shorter than Padilla endured-is torture. They have also ruled that combinations of sensory deprivation techniques amount to torture, as well. …