[Peace-discuss] America's corrupt judiciary

[C. G. Estabrook]

Judge: Padilla Can’t Sue for Torture because Justification for His Torture Was 
Based on Torture
By: emptywheel Friday February 18, 2011 11:21 am

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!

http://emptywheel.firedoglake.com/2011/02/18/judge-padilla-cant-sue-for-torture-because-justification-for-his-torture-was-based-on-torture/