[Texgreen] The Constitution: toilet paper for a Fascist State

[Craig Miller]

Think this couldn't happen to you?  
No more habeas corpus you know ...

cdm
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from the October 19, 2007 edition -
http://www.csmonitor.com/2007/1019/p01s11-usju.html

The administration offers its legal rationale for the long detention
of Jose Padilla.

By Warren Richey | Staff writer of The Christian Science Monitor

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US officials did not violate any clearly established constitutional
rights when they held a US citizen in isolated military detention
without charge for nearly four years and subjected him to harsh
interrogation techniques.

That's the legal position staked out by Justice Department lawyers
who are urging a federal judge in Charleston, S.C., to dismiss a
lawsuit filed on behalf of Jose Padilla against former Defense
Secretary Donald Rumsfeld and nine other current or former US
officials. Mr. Padilla was held in military custody from 2002 to
2006 as a suspected Al Qaeda operative and enemy combatant.

The 55-page motion, filed this week, offers the first detailed
defense of the government's aggressive treatment of Padilla during
his three years and seven months in military custody. Padilla's suit
says he endured isolation, stress positions, extreme cold, sleep
deprivation, and reportedly was subjected to five months of severe
sensory deprivation, including near total isolation from human
contact.

Mental-health experts who have examined Padilla say the experience
has left him with severe mental disabilities, including post-
traumatic stress disorder.

Government lawyers made no reference to Padilla's diagnosed
psychological problems. They told US District Judge Henry Floyd that
such a lawsuit, if allowed to progress, would interfere with
military decisionmaking, aid the enemy, and make the US more
vulnerable to terrorist attack.

"It would be difficult to devise a more effective fettering of
executive branch officials than to allow enemy combatants to trade a
battlefield in Afghanistan for a battlefield in the US legal
system," Barbara Bowens, civil chief of the US Attorney's Office in
South Carolina, says in her brief.

After nearly four years in military custody, Padilla was transferred
to the criminal-justice system in January 2006. He was convicted in
August in a Miami terror-conspiracy trial and is set to be sentenced
in December. An appeal is expected.

Although Padilla was placed on trial and convicted in Miami, no
court has fully assessed the legality of Padilla's earlier detention
and interrogation in military custody. Government lawyers say such
an assessment is unwarranted.

"Padilla's designation, detention, and interrogation as an enemy
combatant did not violate any clearly established constitutional
rights," Ms. Bowens says in her brief.

"It cannot be said that there were any constitutional 'bright lines'
applicable to Padilla's case which the [government] could be held
liable for transgressing," Bowens writes.

The issue of "clearly established" rights is important because
government officials are protected by immunity from such lawsuits
even when rights may have been violated. They lose that immunity,
however, if the violated rights are so obvious to a reasonable
person that they are considered "clearly established."

"Officials are not liable for bad guesses in gray areas," Bowens
notes. "They are liable for transgressing bright lines."

Padilla's lawyers believe the lines in his case are clear and
clearly established. In their 30-page complaint, they charge that
Padilla "suffered gross physical and psychological abuse at the
hands of federal officials as part of a scheme of abusive
interrogation intended to break down [his] humanity and his will to
live."

The complaint says US officials violated Padilla's constitutionally
protected rights to consult a lawyer, to gain access to the courts,
to practice his religion and associate with family and friends
without government interference, and to be free from coercive
interrogation, free from cruel and unusual punishment, and free from
illegal and arbitrary detention.

Fundamentally at issue in the Padilla case is whether such
constitutional guarantees continue to protect a US citizen seized on
US soil and held without charge in a US-based military prison once
the citizen is designated an enemy combatant.

Bowens says the issue has already been decided by a federal appeals-
court panel in Richmond that upheld Padilla's military detention in
September 2005. As a result, she says, Padilla's lawyers should be
precluded from raising any constitutional claims – even claims
related to Padilla's interrogation and isolation.

Some legal analysts say they are alarmed by the sweep of the
government's position. "The notion that there is absolutely no limit
in how the government treats US citizen detainees strikes me as a
disturbing proposition," says Stephen Vladeck, a law professor at
American University in Washington, D.C. "Most people would have
thought before the Padilla case that the government can't simply do
whatever it wants to a US citizen in military custody."

Given the government's reliance on "clearly established" law, the
Padilla civil case could present an ironic twist in the long and
heated debate over Bush administration tactics in the war on terror.
White House and Justice Department officials worked hard in the
years since the 9/11 attacks to maximize legal flexibility in
dealing with detainees. They sought to clarify the law in a way that
would protect interrogators, soldiers, and other US officials from
civil suits and war-crimes charges.

Instead of clarification, the efforts triggered debates both within
and outside the administration over what the law should be.

Now, legal analysts say, the administration may rely on the
lingering uncertainty to help shield US officials from legal
liability. "It will make it a lot harder for plaintiffs [like
Padilla] to win a lawsuit because there is a much better argument
that the relevant laws aren't clearly established," Professor
Vladeck says.

"Even though Padilla's rights may have been violated, the real
question is whether it was clearly established that what the
government was doing to him was illegal," Vladeck says. "One can't
help but wonder based on the torture debate whether anything was
clearly established."

http://www.csmonitor.com/2007/1019/p01s11-usju.html



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