Judge: Padilla Can’t Sue for Torture because Justification for His Torture Was Based on Torture
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.
Now that’s not all that surprising. That’s been one of the favored ways of making Bivens claims go away.
But what’s particularly interesting is the implicit argument in Gergel’s opinion that Abu Zubaydah’s torture was one of those “special factors.” Between the long passage where Gergel lays out the “special factors” as the guideline governing his decision and where he argues that those special factors require dismissal of the case, he includes this passage:
In analyzing this substantial body of case law relating to Bivens claims, it is useful to soberly and deliberately evaluate the factual circumstances of Padilla’s arrival and the then-available intelligence regarding his background and plans on behalf of Al Qaeda. Padilla arrived in Chicago nearly eight months after September 11, 2001 with reports that he was an Al Qaeda operative with a possible mission that included the eventual discharge of a “dirty bomb” in the Nation’s capital. (Dkt. Entry 91-2 at 4) He also had reportedly engaged in discussions with Al Qaeda operatives about detonating explosives in hotels, gas stations and train stations. (Jd. at 5). He was also thought to possess significant knowledge regarding Al Qaeda plans, personnel and operations. (Dkt. Entry 91-23 at 8-9).
Based on the information available at the time, which reportedly included information from confidential informants previously affiliated with Al Qaeda, the President of the United States took the highly unusual step of designating Padilla, an American citizen arrested on American soil, an enemy combatant. (Dkt. Entry 91-3).
Note how the judge doesn’t cite a source here for the claim that Padilla’s designation “reportedly included information from confidential informants;” the source for that sentence is just Bush’s designation itself, which has the section on sources redacted. But earlier he referenced Michael Mobbs’ declaration which included the following footnote describing these sources.
Based on the information developed by U.S. intelligence and law enforcement activities, it is believed that the two detained confidential sources have been involved with the Al Qaeda terrorist network. One of the sources has been involved with Al Qaeda for several years and is believed to have been involved in the terrorist activities of Al Qaeda. The other sources is also believed to have been involved in planning and preparing for terrorist activities of Al Qaeda. It is believed that these confidential sources have not been completely candid about their association with Al Qaeda and their terrorist activities. Much of the information from these sources has, however, been corroborated and proven accurate and reliable. Some information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials. One of the sources, for example, in a subsequent interview with a U.S. law enforcement official recanted some of the information that he had provided, but most of the information has been independently corroborated by other sources. In addition, at the time of being interviewed by U.S. officials, one of the sources was being treated with various types of drugs to treat medical conditions.
Gergel doesn’t say it, but we all know that one of those “confidential informants” is Abu Zubaydah and the other is probably Binyam Mohamed. Presumably, Zubaydah was the one “being treated” with drugs. And given the reference to US law enforcement, he is also presumably the one who recanted his statements about Padilla.
But more importantly, Gergel doesn’t say, but we know, that both Zubaydah and Mohamed had been subjected to extreme sleep deprivation–and possibly a great deal more–by the time they made their statements tying Padilla to terrorism. Gergel also doesn’t say that other cases based on Mohamed’s torture-induced testimony had been dismissed.
Gergel also doesn’t acknowledge that the federal conspiracy charges of which Padilla was convicted have nothing to do with the charges laid out in these documents related to his designation as an enemy combatant; that doesn’t stop Gergel from emphasizing that Padilla is a “convicted terrorist.”
Nevertheless, his discussion of Padilla’s designation using torture-induced evidence, appearing as it does right between his establishment of “special factors” as the guiding principle and his dismissal of the suit betrays that this torture-induced evidence is a key part of these “special factors.”
That background, though, makes it clear why Gergel thought those special factors should trump Padilla’s constitutional rights.
Padilla’s counsel would likely seek information on intelligence methods and interrogations of other Al Qaeda operatives. All of this would likely raise numerous complicated state secret issues. 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. This massive litigation would have been authorized not by a Congressionally established statutory cause of action, but by a court implying an action from the face of the American Constitution.3
3 Plaintiffs’ counsel urged the Court at oral argument to delay consideration of the practical realities of allowing a Bivens claim to go forward under these facts and circumstances until after the motion to dismiss stage. This approach, however, would result in the Court failing to timely consider “special factors” counseling hesitation, which include here the potential disruption and burdening of national security, intelligence and military operations arising from discovery under the Federal Rules of Civil Procedure.
You can’t have a “convicted terrorist” summon someone like Rummy to a federal courthouse to answer questions about the torture the government used to justify Padilla’s own designation as an enemy combatant so we could in turn torture him. That would be a “spectacle.”
It all makes so much sense!
Of course, this is all the more remarkable given that the Gitmo jury is right now deliberating on a plea deal for Noor Uthman Mohammed, which trades a shortened “sentence” (he’s already been there for 9 years) in exchange for testimony against Zubaydah.
Sorry off topic
But the Air Force is hiring trolls while providing sock puppet software
I guess spelling is optional? “geographacilly”
Assimilation of the entire Federal judiciary will be completed in 3,2, 1, ….
Because heaven knows that we can’t have some silly little piece of paper like the American Constitution stand in the way of the national security state’s ability to grind people to dust…
Though it’s sort of consistent with the GOP rule that you have to tie each piece of leg to the Constitution (which they don’t do, though) and the Dem amendment to one of the PATRIOT extensions saying it had to be consistent with the 4th Amendment.
Our great constitution has become just a set of asterisks.
It’s become the “9/11 Changed Everything” Constitution, where national security is the black hole that swallows most of the Bill of Rights–except the right to bear arms everywhere and to inflict your right-wing religious beliefs on your fellow citizens.
And thank you, Mr. Former Law Professor, Mr. Post-Partisan Nobel Peace Prize winner, for running away from the Constitution–the pre-9/11 version–and deciding to ratify almost everything the Bush administration did to expand presidential power at the expense of our system of checks and balances. Your place in history is secure.
Seems all by design.
It is, and I plead guilty to multiple counts of not having seen it coming.
How many holes to hell does that decision contain…paved with “our” good intentions?A nd will Americans begin to critically think for themselves ever again when our vaulted thinkers come up with this SHIT?
Security, Sicherheit, and liberty are not mutually exclusive. One is meant to guarantee the other, not override it.
Is that really you, EOH? Which way the arrow goes is pretty important, nicht var?
Bob in AZ
I never understood before the French army and government’s attitude that they couldn’t possibly reconsider whether justice was done to Capt. Dreyfus. Doing so, they firmly believed, would jeopardize state security. Why? Because it would imply that the state, the army, and its leadership personally (all used interchangeably), were capable of doing wrong, even if they didn’t in Dreyfus’ case. Never mind the Caribbean hell hole Dreyfus was wrongly committed to.
It took a years’ long international campaign orchestrated by the French and the international press and the people to make them reconsider, if not change their minds.
After seeing how the American judiciary, the American presidency and the American legislature have immunized themselves against liability for having authorized torture as public policy, I now understand it completely.
Ahh, the old “We can’t do what’s right, because it’d be too embarrassing,” argument.
Way to go American judicial system! That really worked out well for the Catholic church. Looks like our country’s still right on track for demise by collective insanity.
I love the litany of assaults on human dignity that don’t deserve recourse the judge recites:
Racial discrimination (Chappell v. Wallace)
Facilitation of “summary execution, murder, abduction, torture, rape, wounding, and the destruction of private property and public facilities” in a foreign country (Sanchez-Espinoza v. Reagan)
Kidnapping (extraordinary rendition) and delivery to foreign agents for the purposes of torture (Arar v. Ashcroft)
Torture by U.S. military personnel in Iraq and Afghanistan (In re Iraq and Afghanistan detainees)
In each case, judges decided that common human decency and what we used to call inalienable rights must be sacrificed lest there be some minor interference in the ability of the State (we really must capitalize it here) to kill (mostly brown) people.
Yes, let’s strip an awkward plaintiff of his rights and access to the court system because doing otherwise might embarrass a political figure. It might disclose that he and his superiors had committed or authorized flagrantly illegal conduct. The latter would be so rude, it justifies the former. Talk about the horse walking ten yards behind the cart.
Pray tell dear EofH, is this ironic…my first choice in looking up sicherheit
given “our” security apparatus?
It’s not intended to be ironic. When security becomes so warped that maintaining it drowns out civil liberties and access to the courts, then what, pray tell, is enforcing it meant to protect. The dignity and income of political leaders, as in Egypt? Civil liberties mean little if they are only available to the people those in power happen to like or admire.
Sichereheit, security, I inserted to imply that some arguments – such as those Bush, Cheney and Rumsfeld advanced to justify their “enhanced interrogation” or verschaerfte Vernehmung – simply read better in the original German.
Wer mit Ungeheuren kampft…und so weiter.
Some monumental tasks are exaggerated, some fears are luxuriated in, so as to make elderly politicians feel immortal and to reinforce the myth that their services to the state are irreplaceable. It doesn’t hurt when that process generates billions in profits, and convinces the public not to object when an iron veil of secrecy descends on what government does and how it does it.
I am just having a problem with understanding how these people can do this. Members of the Judiciary are not stupid people (I have to admit Scalia puts a dent in this premise). How can they make these decisions and still look rational people in the eyes? Do they find comfort in surrounding themselves with apologists and excuse what they are doing as anomalous, or are they just purely sadistic underminers of justice?
…because they can, and they apparently cannot be in any way held accountable.
I suspect there are as many reasons as there are drinkers in the Old Ebbitt Grille. Some agree with the government, some merely acquiesce with what it wants, some are tired of fighting it, some want to pass the buck (or keep anyone from passing it, as in this case), and some lower court judges want to become higher court judges, and pissing off TPTB is not a way to do it.
Yes indeed, how dare a court give credence and respect to “the face of the American Constitution” at the risk of the loss of face of the American Executive branch.
We know which one is more important.
Apparently he’s on board with everyone waiting out the torture sol for Jon Burge – it would have been a “spectacle” to have those “convicted murders” drag a chief of police and prosecutor from the fine Daley family into court.
(And appparently he’s not all that interested in the fact that the ‘highly unusual’ step the President took is one that US precedent pretty much disallows)
What – have today’s federal judges decided that their role is now merely to play defense for the “team,” in order to prevent any scoring in the Executive Branch goal?
Because where the hell is the “counseled hesitation” by our federal judges in the face of despotic presidential assertions of a right to deploy a “state secrets” bar to litigation – against powerful government actors – brought by American and foreign citizens “in the absence of express Congressional authorization” for that “state secrets” bar to litigation??
The Constitution – on which “Bivens” claims are based – at least explicitly protects our inalienable rights as human beings and American citizens to be protected from government abuses of power. Clear Constitutional protections that our federal courts now so routinely “hesitate” to enforce against the very actors that the Constitution and separated powers were so carefully designed and intended to constrain.
Yet nowhere in the Constitution – “implied” from “its face” or otherwise – may we find the “state secrets” immunity shield that the federal courts unilaterally created for the presidency in 1953 (supposedly, then, as an “evidentiary” shield), and now solicitously deploy, again and again and again – without any angst-ridden “hesitation” – to prevent violators of the Constitutionally-protected human rights of individual citizens from being brought to justice, and even the claims of the victims from being aired in American courts, when the alleged violator is an agent of the American presidency.
Yesterday’s dismissal of Jose Padilla’s civil suit doesn’t represent good faith “hesitation” – it represents bias: corrupt, unequivocal bias designed to favor and protect the most powerful at the expense of the least powerful, which is an absolutely-contemptible, injudicious, and cowardly trait for lifetime members of our independent federal judiciary, like USDC/District of South Carolina Judge Richard Mark Gergel, to exhibit.
Dot to dots in their bold face trashing of many things in… OH yes, the name of security and the ease they are getting away with it.
Thank God we can depend on the Supreme Court Five to right this wrong, Right ?
In other words we have to destroy the Constitution to protect the Constitution from destruction AKA Torture/ Murder/ Treason.
I my opinion we’re nuts, completely nuts, certifiably nuts.
That’s what I thought I heard in the wrap-up yesterday.
I’ll take this judge instead.
Shorter version of that last blockquote: “Judging is hard work, and I’d rather not work that hard.”
Yes, a trial would raise sticky issues. Yes, a trial would cost money. Yes, a trial would generate lots of international interest. Yes, a trial would be highly embarrassing to “America’s present and former leaders.”
So &$^%*@& what?
I don’t see a footnote in the constitution that says any of these are reasons to simply decide not to have a trial.
For even more confirmation of the “hand in hand” relationship of our Federal judiciary and the Executive branch, one might read today’s DOJ press release of:
And as EW points out, the Federal judiciary sees no evidence that “torture” had any role in this process whatsoever. When one closes one’s eyes to make this observation, surely they must be viewed as honest, impartial and all-seeing arbiters of only “the facts”.
And if you believe that, I’ve got oceanfront property in Arizona to sell you.
So the judge wanted to avoid the “spectacle” of America’s leaders called to account for torture. Ah justice!
Great analysis, EW.
I’d note that when you say that Binyam Mohamed and AZ were subjected to “extreme sleep deprivation–and possibly a great deal more–by the time they made their statements tying Padilla to terrorism,” it absolutely was “a great deal more.”
The CIA IG report described what was meant by the CIA when they said they were using “sleep deprivation.” I analyzed this in an article in May 2009, “Torture: What’s in a Name? It Was Never Just “Sleep Deprivation,” taking off on an excellent report by Greg Miller at the LA Times. The IG report described the “sleep deprivation” technique, which included nudity/diapering/humiliation, reduced nutrition/partial starvation, shackling, forced positions, forced standing, hanging by arms, etc.
“Like an evil version of a Russian Matryoshka doll, as you look deeper and deeper, behind a supposedly straight-forward, if debilitating torture technique like sleep deprivation, there lies nested, one within the other, greater and greater forms of torture and abuse.”
A real profile in courage
Which explains why the PHR report contains a description of a medic reducing a guy’s dislocated shoulder so they could continue the “passive sleep deprivation” some more.
I used to sleep standing up on a public bus when I had to take long (50km) bus rides in one country I lived in. The idea that just standing on your feet keeps you from sleeping when you’re sleep deprived is garbage. The technique was an excuse for strappado.
As for the description, the judge is admitting torture evidence, the same way they did in the Siddiqui trial. They find some way to make it seem indirect, and appeal to some indirect conjunction with the laws of war in which it seems as if the application of the law is on this side, and the torture is on the laws of war side. I don’t buy it, torture is explicitly illegal under the laws of war. Whether or not the Torture Treaty applies with all the fancy arguments used by the Bush Administration to someone outside the U.S. in some black site and all, it certainly does to the judge, sitting in a courtroom in the U.S., and that means he is bound by Article 15:
So unless his purpose is to accuse or indict the CIA and law enforcement people who interrogated the two sources, he was breaking the Supreme Law of the Land citing such evidence in a proceedings.
I think the Article 15 argument is a powerful one, but in this lawless land, nothing seems to touch the underlying mantra of the powerful (even if laid out in opaque legalese) that “might makes right.”
Yet beneath it all, they are so nervous of losing their power that they keep augmenting the apparatus of state repression. That is one thing they are correct about… their power will become as nothing, even with all their nuclear bombs and spy satellites and drones, if the people decide to withdraw their support and stand together against their criminal rule. We saw this in Egypt, where the battle is still playing out, and they know only too well it can happen here.
From the calling of the Estates General to August 10, 1792 was only four years. That’s how long it took to destroy the ancien regime.
A world can change in less than half a decade. Think about it.
No, and it was only a year from when Henri Alleg published La Question until the fall of the Fourth Republic.
Citing Article 15 puts the judge in the docket. Citing torture evidence in Federal Court is now commonplace, and nobody does anything about it, even the civil rights organizations just cite how well the courts work at convicting people as evidence that we should use them.
In reality, the judges in the federal courts are guilty of grave breaches of international law, and could be put on trial themselves. It’s a grave breach to try someone on war crimes charges for a crime that wasn’t a crime when they were arrested or when it was committed. It’s a grave breach not to provide a regularly constituted court with all the judicial guarantees considered indispensable by civilized people. One of those guarantees is that “evidence” taken by torture should not be admissible or used by chain of implication.
Judges like Mark Gergel and Richard Berman and prosecutors like Chris LaVigne and Scott Macintosh and especially interrogators like Bruce Kammarman and Angela Sercer are war criminals. It isn’t a passive application of justice to thwart torture statutes and implement a lawlessness and breach international law in the courtroom in order to achieve a perfect conviction and sentencing rate for “terrorists”. It’s an active participation in a systematic regime of torture and cruelty.
I’m with you, ondelette, on this. The system has been suborned. The magic acid of torture has seemed into the interstices of the system and corrupted the joints and sinews, the mere logical certainties that made a system of laws seem manifestly important. Now, it’s just tyranny. Every court may have not succumbed, but the tide it rolling in, and no one is erecting barricades against it.
The difference, btw, between the fall of the Fourth Republic, and the fall of the ancien regime is the difference between political change and a social revolution. The ancien regime fell, too, in part because of torture, and the citizens who felled the Bastille, or who dragged the King back from his flight abroad and put him and his Queen in the dock, knew very well the cries of Jean Calas, of Jean Francois Le Febvre, known as the Chevalier de La Barre, who was tried and executed in Abbeville, in the French province of Normandy in 1766, accused of singing anti-religious songs, being disrespectful to a religious procession, and harming a crucifix.
Even the monarchs of the late 18th century knew to eschew torture. This is how far back civilization has been thrown. Mass murder, torture, judicial collaboration with tyranny. I shudder to think of the calamities that await us.
Actually, this is the very thing so badly needed.
Bob in AZ
So Judge Richard Mark Gergel is claiming he’s too much of as chickenshit to do the judging?
How are we going to get out of this mess? This must have been what it was like in Germany..so frustrating.
Does anyone think someone might be threatening judges? Just wondering.
Executive Branch abuses of power is not a partisan issue, if we are a nation of laws. While underlings are not at issue for following orders, those who crafted any that are in fact against the laws of the United States or Canada, cannot be just given a wink & nod.
– Balkingpoints / www
Torture techniques are being metted out on US soil.
Bradley Manning is suffering from it as we speak. Although many have tried to stop this, and have him held in a regular cell, nothing has changed yet.
The entire country knows this already. Do you a Judge will use that excuse on him? NOPE! Why? Because Manning will be tried in a Military Court Martial.
There is no justice either way. America is not the country we were brought up to believe.
Well, at least we now know for certain that Judge Gergel is corrupt and not even smart enough to avoid making a spectacle out of himself by writing an opinion covering his tracks. That likely means he’s probably a Republican too.
How did this authoritarian and fascist ass kisser ever get to be a judge?
Right wing judges – and center-right nominees by Obama can’t get hearings
Guess Obama will go “non-partisan” and nominate more folk like Judge Richard Mark Gergel
I try to follow the torture issue closely (I was at the Circuit Court of Appeals in Pasadena today protesting the appearance of Jay Bybee, for example), so I hope I won’t appear ignorant if I ask what a Bivens is. What is a Bivens?
(And I know that I could look it up myself, but I think that even when one is writing for reasonably hip people, one should explain basic terms just to be on the safe side.)
A Bivens clsim is a civil suit filed by a person against a federal official(s) for violating the person’s civil rights. It’s based on Bivens vs. 46 Federal Narcotics Agents, more or less, in which during better days the US Supreme Court held that plaintiffs whose civil rights were violated by federal officials should have the same ability to sue them as they would a state official who violated their civil rights under 48 USC 1983. Prior to Bivens, they were SOL.
Ah, thank you. Is it fair to say we’re post-Bivens now?
For high ranking officials, probably. Can’t have them be embarrassed.
And thanks for the reminder that I should at least provide a link to explain these terms.
And nothing is worse than embarrassment. Torture isn’t worse than embarrassment. Illegal wiretapping isn’t worse than embarrassment. Illegal and unprovoked wars of aggression that destroy the country’s treasury and good name in addition to killing several thousand American soldiers and hundreds of thousands of innocent civilians in other countries isn’t worse than embarrassment.
It’s just remarkable the way the American ruling class is circling the wagons to protect itself at the expense of all the values this country has supposedly stood for.
This kind of thing wouldn’t have happened in America. I was quite disappointed to find out it didn’t actually exist.
Where’s the surprise in this. If people are still under some false illusion America is a place where people can get justice, where the hell have you been the past 11 years. The courthouse doors are closed to justice, unless you sell a bag of weed!