Roger Fitch

Roger Fitch Esq • January 22, 2008

Our Man in Washington

In my most recent post I described the lawsuit brought by Jose Padilla against John Yoo, the former Department of Justice official who was the author of the Bush administration’s interrogation and torture policy.

The case is generating plenty of comment, including this from Slate’s legal observer, Emily Bazelon.

The best analysis of the Yoo case was John Steele’s on the Legal Ethics Blog.

Elaine Cassel has also written about the lawsuit at FindLaw’s Writ.

The Murdoch Wall Street Journal cried out, “Terrorist Tort Travesty”, and provided an analysis by Mr Yoo himself.

As Yoo had claimed earlier, it was all a case of “lawfare”, i.e. evildoers using the rule of law to wage war against innocents, such as himself.

Yet even the court circular, The Washington Post, now thinks Padilla’s torture should be investigated.

As I noted in my post of September 4, Padilla has a case pending in South Carolina against Department of Defence personnel. Why not sue the person who advised and counselled their conduct?

Balkin Blog’s legal ethicist, David Luban, saw similarities between the behaviour of John Yoo and other Bush “lawyers”, and similar underlings employed by Herr Hitler.

More on that can be gleaned from the trial transcripts of the Nuremberg “Justice Case” prosecutions.

The indictment lists defendants whose jobs sometimes closely resemble those of the prosecutors, administrators, “legal counsellors” and the like at the White House, the Pentagon and Justice.

The Nuremberg list also includes judges of “special courts”, which may be of interest to those presiding in the Guantanamo military commissions. And perhaps other judges.

In his memoirs, John Yoo has bragged that he advised the Bush administration on the confinement and treatment of Padilla at the navy brig in South Carolina where the “enemy combatant” was held for three-and-a-half years.

What if Yoo (pic) should decide to mount the defence that he was only acting within the scope of his government employment, even if he in fact prescribed “torture”?

Such a defence is now possible. That’s the import of a new DC Court of Appeals decision in Rasul v Myers.

This is another prison mistreatment case, brought by four of the original Guantanamo prisoners, including Shafiq Rasul and Asif Iqbal, the co-petitioners in David Hicks’ 2002 habeas case.

Among the propositions endorsed by the (all-Republican) panel are that (1) mistreatment is within the scope of employment for military personnel who are detaining enemy prisoners; so (2) torture is foreseeable.

The court, believe it or not, cited the Restatement of Agency. Scotus Blog has a report on this chilling decision.

The case is being viewed as one of the worst appeal decisions affecting detainees, ranking with Hamdan I and Padilla II.

Harper’s blogger Scott Horton comments here. McClatchy Newspapers have more.

Another part of the Rasul decision concerned the Religious Freedom Restoration Act, which ostensibly protects prisoners in the exercise of their religion. The district court had allowed this to proceed, but the government appealed and once again claimed Guantanamo is a place where detainees have no rights.

In an amazing contortion, the DC Court of Appeals went even further and ruled that:

“Because the plaintiffs are aliens and were located outside sovereign United States territory at the time their alleged RFRA claim arose, they do not fall with[in] the definition of ‘person’.”

It was of no moment that the Constitution doesn’t equate “persons” with “citizens”, and that the Supreme Court has repeatedly ruled that Guantanamo is part of the US for purposes of detainee litigation.

That was too much even for one judge on the panel, Janice Rogers Brown (pic). Though concurring in the result, she quoted Webster’s dictionary as authority that:

“A ‘person’ is ‘an individual human being … as distinguished from an animal or a thing’.”

Judge Brown then lamented that the decision left the DC Circuit as “the only court to declare those held at Guantanamo are not ‘person[s]’ ... a most regrettable holding in a case where plaintiffs have alleged high-level U.S. government officials treated them as less than human”.

* * *

Last week it was revealed that the Canadian foreign ministry agreed with the DC Circuit on the foreseeability of the torture of detainees at Guantanamo by Americans. Even the New York Times noticed this development.

As was to be expected, however, Canada was soon “persuaded” to remove the names of Israel and the US from its list of states that torture.

* * *

On the same day as its decision in the Rasul torture case (January 11, the sixth anniversary of the Gitmo detentions), a different panel of the Court of Appeals, led by the same judge, Karen LeCraft Henderson, gave the White House a big victory in an FOI claim.

In this case, the NIMJ (National Institute of Military Justice) had sought, “records containing the opinions and recommendations of non-governmental lawyers whose advice the United States Department of Defense (DoD) solicited to promulgate regulations establishing terrorist trial commissions”.

The Court of Appeals upheld a summary judgment in DoD’s favour on the dodgy grounds that private individuals (even unpaid) who give their opinions to the government are somehow producing “intra-agency” correspondence that is exempt from disclosure.

Judge David Tatel, a Clinton appointee, wrote a blistering dissent.

In another ACLU FOI case being run in the NY District Court, Judge Alvin Hellerstein was told by the government that the CIA had “no duty” to preserve the evidence it had been ordered to preserve.

The judge was not buying it, according to reports. The National Law Journal has more.

The FOI case was run by the ACLU’s Amrit Singh (pic), whose new book, Administration of Torture I wrote about in my post of November 8.

It seems Ms Singh is winning appreciative audiences for her Bush-bashing in India, where her father, Manmohan Singh, is the Prime Minister.

As some of us expected, it is now being reported that the torture taping never really stopped.

Perhaps that’s why the government can’t admit that the tapes, if they do exist, are subject to preservation.

* * *

The government has been busy stitching up Jose Padilla and other people, often those involved in running charities, for a connection (no matter how remote) to speculative conspiracies to commit acts of terror.

The government then seeks judicial “enhancements” to the sentences which have the effect of giving punishments exceeding those sought before the jury.

I reported on this practice last year (see my post of July 30).

While the defendant gets a stiffer sentence from the judge than he was given by the jury, the “enhancement” only requires a “preponderance of evidence”.

Often, it seems, the enhancement factor is not proved but only alleged, and this suffices for judicial fact-finding.

In the end Judge Marcia Cooke departed from the Federal Sentencing Guidelines and sentenced Padilla to 17 years in prison, partly because of his ordeal in the military brig.

The judge did say that the government never proved he attended a terrorist training school and it is undisputed that no one was injured by his actions.