Wednesday, April 25, 2012

Padilla Takes Torture Case to Supreme Court

Jose Padilla filed a cert. petition with the Supreme Court this week, asking the Court to review the Fourth Circuit's ruling rejecting his Bivens claim against former Defense Secretary Donald Rumsfeld and other officials allegedly involved in his torture.

This case could be a first foray for the Court into the spate of cases since the attacks of 9/11 that allege torture by U.S. government officials and their private-sector collaborators.  In particular, despite several similar Bivens cases percolating in the lower courts, the Supreme Court has yet to rule on this precise question: Whether a U.S. citizen can sue government officials for torture while in military custody, when the detention may (or may not) be related to national security.  (We last posted on one of these cases, Vance v. Rumsfeld, recently argued before the en banc Seventh Circuit.  (The three-judge panel ruled that the plaintiffs' torture suit could move forward.))  The Court has also not yet taken up a case involving another barrier to torture suits, the state secrets privilege.

Padilla sued Rumsfeld, et al., for violation of his rights, and authorization of violation of his rights, while he was detained at the Naval Brig in Charleston, South Carolina, for two years as an "enemy combatant."  Padilla sued under Bivens, the 1971 case authorizing an individual cause of action against federal officers for violations of the Fourth Amendment; subsequent cases have restricted Bivens claims when "special factors" counsel against a judicial remedy. The defendants moved to dismiss the case, arguing just that--that "special factors" counseled against a Bivens remedy.  The district court dismissed the case (on this ground, and also on qualified immunity grounds), and the Fourth Circuit affirmed.

Padilla, represented by Ben Wizner and a team at the ACLU, argues that the Fourth Circuit's ruling is contrary to Carlson v. Green (1980), a case extending the Bivens remedy to a prisoner's Eighth Amendment claim that federal officers were deliberately indifferent to his mistreatment in federal custody:

Petitioners' claims here fall squarely within the heartland of Bivens and Carlson.  As in Carlson, petitioners allege mistreatment while in federal custody.  And as in both Bivens and Carlson, the traditional circumstances for permitting Bivens relief are plainly present: petitioners seek to hold individual federal officers accountable for grave abuses of a prisoner in federal custody, and there is no adequate alternative remedy.

Padilla also argues that the Fourth Circuit effectively turned the Bivens "special factors" analysis into an executive trump card in military matters, weildable any time somebody tries to sue the military.  Padilla says that this is a misreading of Bivens and the Court's precedents, which show that "special factors" "embody judicial deference to the legislative, rather than the executive, prerogative."  Padilla also argues that it frustrates checks-and-balances and undermines principles of separation-of-powers (by allowing too much power to be consolidated, unchecked, in the executive).


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It is interesting that you link to every case mentioned except the option of the Fourth Circuit that is the subject of the appeal. One problem is that this petition centers on a claim (actual torture) that the lower courts did not consider because they did not find this claim in the complaint. In one of the few uses of the word, the Fourth Circuit found the clam to be:
"While in military custody, Padilla claims that he was repeatedly abused, threatened with torture, deprived of basic necessities, and unjustifiably cut off from access to the outside world. Over time, these conditions were relaxed, and he was allowed monitored meetings with his attorneys."

Note that he was threatened with torture but not tortured. The lower courts found the complaint to allege harsh treatment that was asserted to be unconstitutional, but stopped short of calling it torture. This petition also, when it goes into detail, describes harsh treatment. Padilla had to sleep in a bed without a mattress. Sometimes the light was left on, and sometimes the guards banged on the bars in the middle of the night.

The government claims that Padilla surrendered and stated that he was a soldier in the Army of Afghanistan under the Taliban government. He was captured while on active duty and engaged in a military mission under orders from his commanding officer. Combined with his military personnel file captured in Afghanistan in Dec. 2001, his statement provides overwhelming evidence to support his detention as a prisoner of war. Although not protected by the Third Geneva Convention because he was captured under conditions that made him a spy and saboteur, he was held under conditions that the US designed to meet the minimum standards required by the convention. These minimum standards are harsh conditions.

The problem is that all soldiers, US and enemy, serve under harsh conditions in war. From the day that the Continental Army marched barefoot into Valley Forge to the GIs living in water filled foxholes guarding the periphery of Henderson Field in Guadalcanal, soldiers serve in pretty miserable conditions. A dry metal bed without a mattress sounds pretty good to someone living in a foxhole where it rains all the time. Being too hot some days of the year sounds pretty good where it is too hot every hour of every day. Waking up when they bang on the bars outside your room sounds better than waking up to a Japanese artillery barrage. The GIs at Henderson Field, the paratroopers at Bastogne, the Marines at the Chosin Reservoir, all of them would have swapped places with Padilla in a heartbeat.

When an enemy soldier surrenders he agrees to follow the lawful orders of officers in the enemy army. Padilla had to follow lawful orders of US officers, and that puts Rumsfeld and the other defendants in his direct chain of command. The Chappel decision says that a soldier (a US soldier in the past, but it appears to apply to enemy soldiers as well) cannot use Bivens against superiors in his chain of command to complain about the conditions of his military service. Without this protection, every soldier in every war the US has ever fought has a much better case against the Secretary of Defense than Padilla has even if you accept as true the facts he alleges in this petition.

Posted by: Howard Gilbert | Apr 26, 2012 8:08:33 AM

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