Yoo, Torture Memos, and "Reasonable Officials"

On June 12, a federal judge has issued a stinging rebuke to John Yoo for the opinions he wrote for the Bush administration supporting indefinite detentions and "harsh interrogations." The judge ruled that Yoo's opinions were not merely wrong, but were unreasonably wrong when applied to an American citizen classified as an "enemy combatant."

This should be the first of many judicial opinions that forcefully and unequivocably reject the reasoning of Yoo's "torture memos."

The ruling was in a civil action filed by Jose Padilla against John Yoo in which Padilla has claimed that Yoo's legal opinions, written by Yoo while he was serving in the Department of Justice, caused Padilla to be deprived of civil rights. The complaint alleges unconstitutional detention without due process of law and mental and physical abuse. In rejecting Yoo's claim of immunity from personal liability for acts he performed while an official of the federal government, the judge held that Yoo's legal opinions were unreasonably wrong because Padilla's constitutional rights were "clearly established."

Some background: Jose Padilla is a citizen of the United States who was arrested at Chicago's O'Hare airport, initially charged with conspiracy to construct a "dirty" (i.e., radioactive) bomb, but then turned over to the military who held him in near-solitary confinement for almost four years before he was finally returned to the civilian courts where he pled guilty to crimes less serious than the ones he was initially charged with. (He could not have been convicted of the crimes for which he was originally charged because the original charges were dismissed "with prejudice" when the Bush administration insisted he be surrendered to military custody, and so the dismissal barred any future prosecution for the same crimes due to the constitutional prohibition of double jeopardy for the same offense.)

John Yoo was an official of the White House, and then the Office of Legal Counsel in the Department of Justice, and his legal opinions formed the basis for the Bush adminstrations claims of the powers of the President to order detentions and "harsh interrogations" notwithstanding constitutional guarantees of due process and statutory prohibitions against torture.

In 2008, and after his conviction, Padilla and his mother filed suit against Yoo, claiming that as a result of Yoo's legal opinions Padilla had been detained without charge and without access to legal counsel and had been subjected to severe and prolonged isolation, sleep deprivation, extreme temperatures, painful stress positions, threats of death, and other forms of physical and mental abuse. Padilla and his mother asked for a judgment that those conditions were unlawful and unconstitional, for $1 (one dollar) in damages, and for other relief. Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal. 1/4/2008).

After some procedural sparring, Yoo moved to dismiss the complaint for failure to state a proper cause of action. In deciding this motion, the court did not decide whether what Padilla claimed was true, but merely whether Padilla could win the lawsuit against Yoo if it turned out that everything that Padilla had alleged was actually true. In deciding this motion, the court addressed two major issues:

1. Whether there is a cause of action and legal remedy in court for these kinds of allegations; and, if there is a cause of action

2. Whether the action is foreclosed by the usual immunity of government officials from any personal financial liability for their actions performed in the course of their duties.

On the first issue, the court ruled that the decision of the Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which held that a lawsuit could exist for violations of the constitution, required the court to find a civil remedy for Padilla even though neither the Constitution nor any federal statute expressly stated that Padilla could sue Yoo. (This is an issue that will almost certainly be contested on appeal.)

On the second and at present more interesting issue, the court pointed out that the immunity of government officials for personal liability is a "qualified" immunity, which means that the official is immune unless their conduct violates "any clearly established statutory or constitutional rights of which a resonable person would have known." The court then stated that, in determining whether a government official should be held personally liable for questioned conduct, the issue was "whether, under that clearly established law, a reasonable official could have believed that the conduct was lawful." Applying that standard to the allegations made by Padilla against Yoo, the court then reached the following conclusions:

1. Yoo could be held responsible for deprivations of constitutional rights consistent with his legal opinions because "government lawyers are responsible for the foreseeable consequences of their conduct" and Padilla alleged circumstances that made his mistreatment reasonably foreseeable by Yoo.

2. Padilla sufficiently alleged that his constitutional rights were violated by denial of access to courts in violation of the 5th Amendment and cruel and unusual treatments that would be violations of the 8th Amendment.

3. Padilla's constitutional rights were "clearly established." In reaching this conclusion, the court rejected Yoo's arguments that the presidential designation of Padilla as an "enemy combatant" created any uncertainty about Padilla's constitutional rights.

The necessary, if not explicit, implication of the court's holdings is that Yoo's legal conclusions were not just wrong, but were not the conclusions of a "reasonable" federal officer. Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal. 6/12/2009).

Still to come is the report of the Department of Justice's Office of Legal Counsel on whether the opinions of John Yoo and Jay Bybee departed from professional standards to such an extent that they should be disciplined for failing to adhere to the rules of professional conduct.

Mukasey Confirmed

Michael B. Mukasey has not yet been confirmed as Attorney General, but his most recent testimony before the Senate Judiciary Committee (on 10/18/2007) have confirmed that he is indeed the "moral idiot" that I described earlier.

Asked whether "waterboarding" (the controlled drowning of detainees to obtain information) might be constitutional, Mukasey answered (evasively) that, "“If waterboarding is torture, torture is not constitutional.” Mukasey either does not know, or does not care, that a Japanese officer, Yukio Asano, was tried and convicted of war crimes in 1947, and sentenced to 15 years hard labor, because he waterboarded a U.S. civilian during the second world war.

Just as troubling (or perhaps more troubling) is that Mukasey adheres to the view that the President as commander-in-chief under Article II of the Constitution can ignore the laws enacted by Congress under Article I of the Constitution. So electronic surveillance carried out on the orders of the President might be legal even if prohibited (and made a criminal act) by the laws enacted by Congress. According to Mukasey, “The president is not putting somebody above the law; the president is putting somebody within the law.”

Or, as Richard Nixon put it, ""When the president does it, that means that it is not illegal."

Torture Lite

Recent stories in the New York Times (see Secret U.S. Endorsement of Severe Interrogations (October 4, 2007) and Debate Erupts on Techniques Used by C.I.A. (October 5, 2007)) make it clear that the Bush administration does not want to allow any meaningful public debate on the proper treatment of detainees.

In August of 2002, the Department of Justice produced what has come to be known as the "torture memo," which concluded that deliberately inflicting pain on a detainee was not "torture" unless the pain was equivalent to "organ failure" or “even death.” According to the NY Times, there was also a separate memorandum that described specific approved techniques.

The "torture memo" was officially withdrawn by the Department of Justice in 2004, after the original author (John Yoo) had left the Department, and after news of the content of the memo had become public. The Department of Justice then put on its website a very sanctimonious opinion titled "Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A" that declared torture to be "abhorrent" and explained the meaning of terms such as "severe pain," but only in the most general way and without ever referring to any specific way of inflicting pain.

That much has been public knowledge for some time. What is news is that in 2005, after Alberto Gonzales became Attorney General, the Department issued a new, secret memorandum, again approving the infliction of physical and psychological pain. According to the NY Times, this new memorandum specifically approved not only the use of slapping, cold temperatures, sleep deprivation, loud music, and waterboarding, but allowed these techniques to be used in combinations. So it might be possible to slap around a detainee, put him in a 50 degree cell for a few hours with "music" so loud he couldn't sleep even if he could stop shivering, and then, if he does fall asleep, wake him up for some waterboarding, followed by more slapping.

(Incidentally, the NY Times and other sources continue to refer to waterboarding as "simulated drowning" or "making the subject think he is drowning." Let's be clear. Someone subject to waterboarding really is drowning. They cannot breathe, and will suffocate unless the waterboarding stops. The only difference between waterboarding and the cruel, crude, medieval practice of "dunking" is that, during waterboarding, no water can get into the victim's mouth or nose. Big deal.)

Okay, so combinations of slapping, cold temperatures, and waterboarding might not be "torture." But then Congress upped the ante, enacting the Detainee Treatment Act of 2005 and making it a crime for detainees to be subject to "cruel, inhuman or degrading treatment." Well, guess what? Then the Department of Justice declared (secretly) that the same things that they had decided weren't torture weren't even "cruel, inhuman or degrading." According to the NY Times, another secret memorandum was issued by the Department of Justice in late 2005 that reached that very conclusion.

And now, many members of Congress are upset to learn that the Department of Justice has a practice of issuing memos saying that the laws Congress has enacted don't mean what Congress thought they meant and without telling Congress that. (Which Congress should have expected, given that Bush had attached a "signing statement" to the Detainee Treatment Act of 2005 saying that he would ignore the act if he thought he had the constitutional authority to do so. See "Clarification" in this blog.)

And the response by the White House? White House press secretary Dana Perino refused to identify or discuss any specific techniques but declared that "any procedures that they use" are "tough, safe, necessary and lawful." (The "tough" I believe.)

So there you have it. Congress can pass any law it wants regarding "torture" or "cruel, inhuman or degrading treatment," and those laws don't really mean anything because the lawyers in the Department of Justice (who are appointed by the President, remember) get to define what is meant by "torture" and "cruel, inhuman or degrading treatment" and the President doesn't need to tell us (or Congress) what these definitions are.

Another Moral Idiot for Attorney General

The appointee for the position of Attorney General of the United States, Michael B. Mukasey, might have a better memory than Alberto Gonzales, but there is no reason to believe that he is any better qualified in any other way to be Attorney General.

One of the key failings of Alberto Gonzales as Attorney General was that he was incompetent as a manager. His testimony before Congress demonstrated that he had little idea of what his subordinates were doing, and no idea at all of why they were doing what they were doing. Gonzales had served as a judge, and as a lawyer, but had never been an administrator and had never managed any organization, much less an organization as large as the United States Department of Justice.

Well Mukasey has been a judge, and has been a lawyer, but has never managed anything either, so there is no reason to believe that he is any better qualified to run the Department of Justice than Gonzales was.

The other key failing of Gonzales was his complete lack of any independent judgment. In his memorandum as White House counsel supporting the use of torture (by redefining the word "torture"), in his support for wire-tapping in violation of the Foreign Intelligence Surveillance Act, and in his support for administration policies on Guantanamo Bay and the indefinite detention of those merely suspected of terrorist plots, he showed more desire to carry out the wishes of the President than comply with the law. Mukasey might not be the lap-dog that Gonzales was, but there is no reason to believe that his judgment is any better.

While a federal judge, Mukasey ruled against Jose Padilla and held that "the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla's detention is not per se unlawful." Jose Padilla v. Rumsfeld et al., No. 1:02-cv-04445-DAB (3/11/2003), rev'd 352 F.3d 695, (2d Cir. 2003), rev'd on other grounds, 542 U.S. 426 (2004). The "circumstances" present here were that Padilla was a United States citizen who was arrested in the United States on a material witness warrant and then transferred to a military brig, where the government intended to hold him indefinitely, without ever charging him with any crime. The government claimed that Padilla was an "enemy combatant" but the Second Circuit Court of Appeals properly concluded that, "absent [Congressional] authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat." 352 F.3d at 698.

Mukasey's belief that the President of the United States has the power to seize American citizens and hold them indefinitely, without proof of any crime, shows that he, like Gonzales, is a moral idiot. Gonzales and Mukasey may be able to determine what is legally correct, but they obviously have no clue about what is morally right.

Let's not make the same mistake again. Let's not confirm another Gonzales as Attorney General.