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.

Squandered

The real Bush legacy (not the one he imagines) can be summed up in one word: Squandered.

At the beginning of Bush's first term, the United States had a balanced budget, moderate debt, healthy and well-equipped armed forces, and a dominant leadership position in the world community. And, after the 9/11 attacks, there was unity within the United States and sympathy from abroad.

What did Bush do with all those assets? He squandered them.

Bush's tax cuts for the wealthy has driven up our national debt to record levels.

The invasion of Iraq and the resulting pressure on our armed forces (while also trying to fight a ground war in Afghanistan) has stretched our military to the breaking point and has depleted so much equipment and morale that it would take years to recover even if the war ended tomorrow.

Our continuing use of violence and threats of violence as a solution to all problems, both on an individual level (Guantanamo Bay, secret prisons, "extraordinary rendition," and the use of what the world considers torture) and a national level (Bush now talks openly of using military power against Iran) has completely negated whatever international goodwill that existed after 9/11, and has undermined our role as a moral and diplomatic world leader.

And, the unity that arose after 9/11 was effectively killed by the realization that we'd been manipulated at best (lied to at worst) in Bush's rush to invade Iraq.

Now we're facing real threats, both in a looming recession and continuing fall in the value of the dollar, and in the rise of the power of the Taliban in Afghanistan and Pakistan, and we've got nothing to fall back on. Bush squandered the economic and military resources we should have kept for emergencies.

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.

The Power of Darkness

In an earlier posting ("Guantanamo and Legal Ethics"), I commented on the efforts of a Pentagon official, Charles D. Stimson, to limit the legal representation of the prisoners at Guantamo Bay by attempting to intimidate their lawyers. (I only recently learned that, as a result of the uproar over Stimnson's remarks, he resigned on February 2. And, according to an Associated Press story on the same day, the Bar Association of San Francisco asked the California State Bar to investigate whether Stimson violated legal ethics in his remarks.)

Now, the Bush administration is making a more direct assault on the lawyers, but seeking a court order limiting their access to their clients, both in their meetings with their clients and in their written communications with their clients (which will be read and censored).

This action appears to be the result of the wave of appeals now being filed in the DC Circuit by detainees. So far this year, there have been 14 appeals filed from "Combatant Status Review Tribunals," all of which have been filed since mid-March. There have also been 8 habeas corpus petitions filed, all since the beginning of February.

According to a story in today's New York Times, the filings by the administration include an affidavit from a Navy lawyer at Guantanamo, Cmdr. Patrick M. McCarthy, who alleged that lawyers for the detainees have been providing the detainees with information about events outside of the Guantánamo Bay military base, such as a speech at an Amnesty International conference and information about more recent terrorist attacks. The affidavit states that "Such information threatens the security of the camp, as it could incite violence among the detainees."

Exactly why or how such information could "incite violence" is not explained, but the obvious explanation is that the information gives the detainees hope.

Hope is what leads people to rebel. If you can hope to be free, then you can continue to struggle against your captors. But if you have no hope of ever being free, or ever being allowed to communicate with your family again, and there is no possible life other than eating and sleeping in isolation in a concrete cell, then there is no hope, and perhaps no reason to live.

And that is the goal of the Bush administration. They don't want merely to imprison the bodies of the detainees; they want to crush their spirits, and the way to crush their spirits is to keep them in darkness.

Criminal Conduct as a "State Secret"

The recent decision of the 4th Circuit Court of Appeals in El-Masri v. Tenet, ___ F.3rd ___, No. 06-1667 (4th Cir. 3/2/2007) is definitely disturbing in its implications, if not its explications.

Briefly, Khaled El-Masri is a German citizen who was allegedly seized in Macedonia, delivered into the custody of the U.S. Central Intelligence Agency, imprisoned by the CIA in Afghanistan, beaten and abused, and finally released in Albania. He was apparently a victim of the U.S. program of secret prisons and "extraordinary rendition" that has been widely reported by the press and finally acknowledged publicly by several top government officials. The essential elements of El-Masri's own account of his abduction and imprisonment have been confirmed by the Council of Europe, and arrest warrants for persons suspected of involvement (who have not been publicly identified) have been issued by a German court.

El-Masri also filed a civil suit in the United States against then-Director of the CIA George Tenet, other named CIA officials, and other unnamed persons responsible for his abduction and mistreatment. El-Masri v. Tenet et al., No. 1:05-cv-01417 (U.S.D.C. E.D. Va.). (Selected court documents can be found through the ACLU.) The United States government immediately intervened and asserted the "state secrets" privilege, which prevents a court from considering a case if state secrets would necessarily be involved. The District Court dismissed the case on those grounds, and now the 4th Circuit Court of Appeals has affirmed.

In his assertion of the state secrets privilege, then-Director of the CIA Porter Goss stated that the civil complaint alleges that the CIA conducted a "clandestine foreign intelligence activity," and that the United States can neither confirm nor deny those allegations without disclosing classified intelligence source and methods. Goss further stated that, because of the allegations of CIA involvement, "parties in this case have a special incentive to probe the CIA's foreign intelligence interests, authorities, and methods generally, and seek information and evidence to establish or refute claims and defenses." The nature of the interests, authorities, methods, or defenses that might be exposed by the litigation is not disclosed in the record, but were described in a "classified declaration" reviewed only by the judge in the District Court, and by the three judges who heard the appeal in the 4th Circuit.

What is disturbing about the claim of Director Goss, and the opinion of the 4th Circuit, is that the legality or criminality of the activities of the CIA have nothing to do with whether the state secrets privilege should apply. The 4th Circuit acknowledged that El-Masri challenged whether the state secrets doctrine should apply in cases of "egregious executive misconduct," and it's response is very unsatisfying. The court rejected the concept that the judiciary "possess a roving writ to ferret out and strike down executive excess," and explained that the courts have a "more modest role," which is to "simply decide cases and controversies." According to the 4th Circuit, the courts can impose liability against an executive officer "in a properly conducted judicial proceeding," but "we would be guilty of excess in our own right if we were to disregard settled legal principles in order to reach the merits on an executive act that would not otherwise be before us." This is circular, internally inconsistent, and evasive.

It is circular because the El-Masri was not asking the court to do anything but decide the case in front of it, and the court's response says little more than that the court has to dismiss the case because the court has to dismiss the case.

It is internally inconsistent, because the court claims to "simply decide cases" and implicitly rejects the idea that it should take into account broader public policy considerations even while dismissing the case under a doctrine that is based on broader public policy considerations.

Finally, the court is being evasive because it fails to address the actual issue raised by El-Masri, which is whether the application of the state secrets privilege to activities which appear to be unlawful on their face is a "settled legal principle." All of the precedents cited by the court seem to involve cases in which the alleged actions of the government might or might not have been legal, but are there any possible defenses to what is alleged to have occurred?

The heart of the complaint against George Tenet is that, as Director of the CIA, he approved a program of extra-legal seizures, transportations, and detentions of persons in violation of the laws of the United States and international law. The 4th Circuit claimed that, in order to succeed in that claim, El-Masri "would be obliged to show in detail how the head of the CIA participates in such [sensitive intelligence] operations, and how information concerning their progress is relayed to him." But is that true? That would be true if the question were whether Tenet was negligent in some way, or whether he was aware of El-Masri's circumstances in particular, but in this case the question is whether Tenet approved a particular program, the existence of which is already public knowledge, and it should be relatively simple to either or confirm deny that fact. And if Tenet approved an unlawful program, then he would be legally responsible for the results of that program whether or not he knew anything about El-Masri individually.

The only imaginable way that an investigation into Tenet's liability might be invasive, and so risk state secrets, is if the program he approved were legal or the harm to El-Masri were not foreseeable, in which case it would be necessary to disclose the details of the program in order to judge whether or not Tenet should be responsible for what happened to El-Masri. Is such a defense really possible? Is it really possible that our government can officially, regularly, and secretly seize people without any arrest or other judicial approval, imprison them, and abuse them without violating any law?

Unfortunately, we don't know what issues were raised in the classified declaration, and the 4th Circuit admits that is "no doubt frustrating" that the exact reasons for the court's opinion are classified. It is even more frustrating to learn that the CIA has been imprisoning and abusing people and there has been, and will be, no judicial restraint, no oversight, and no legal consequences.

Two final notes:

Whether or not the government has the raw extra-legal power to do what it did and get away with it, there is still the moral issue of whether or not the government should compensate El-Masri for his sufferings at our hands. There is no reason to believe that the Bush administration has ever considered, or will ever consider, this issue, despite its claims of Christianity and morality.

There are a number of differences defenses that the Bush administration could have asserted to the El-Masri complaint, including whether or not the complaint even states a cause of action against the government even if what the complaint alleges is true. (It is not clear to me whether a court would assert civil liability against a government official for actions taken outside of the United States in the absence of clear legal authority, which I'm not sure exists.) The Bush administration chose to assert the defense that resulted in the most governmental secrecy and the most Presidential power, and this is consistent with most decisions of the Bush administration.