Monday, December 7, 2009

The government is really on trial in Padilla case

Word from San Francisco that the Obama administration is pressing for the dismissal of a lawsuit filed by an infamous terror suspect should come as no surprise to anyone. As everyone has seen in the past 12 months, last year's historic change at the top of the U.S. government did not mean that everything would be completely different from that point on. The government is involved in so many things, it is not possible -- nor desirable -- for all of them to change immediately. When it comes to lawsuits already in process, like the one filed by the family of Jose Padilla against University of California Professor John Yoo, the government cannot reverse positions without considerable legal maneuvering. Anyway, even if the government wanted to change course, it could, and maybe should, simply rely on the legal process to force that change. Even given that, it is not always clear what the government's best interest is. Take the Padilla case. You remember Padilla, right? He is the U.S. citizen accused of plotting with al-Qaida to detonate a radioactive dirty bomb in the United States in 2002. Padilla was declared an "enemy combatant" by the Bush administration and isolated in a U.S. Navy brig in South Carolina for more than three years. His and, his family's lawsuit alleges, was subjected to the kind of corporal mistreatment that Yoo, then a U.S. Justice Department lawyer, contended was not torture in a now infamous memorandum in 2002, according to the San Francisco Chronicle newspaper. According to allegations in the lawsuit, Yoo was subjected to sleep and sensory deprivation, kept for long periods of time in total darkness and blinding light, and threatened with the deaths of himself and his family if he didn't talk to U.S. interrogators. This is the kind of mistreatment the United States and scores of other nations agreed to eliminate in treaties signed after World War II. But Yoo's 2002 memo theorized how the Bush administration could possibly justify mistreatment of detainees while maintaining that the United States adhered to international treaties pledging that it would not engage in such conduct. The Padilla family lawsuit sought token damages against Yoo, contending that he had personally authorized the mistreatment, the Chronicle said. But the United States -- then the Bush administration, now the Obama administration -- contends that there is no legal right to sue lawyers who give advice to the president on issues of national security. That is not an insignificant point, and is probably correct. It will be interesting to see if the federal courts can resolve the question without deeply limiting access to the court system that citizens authorize and pay for. Yet the legal machinations are obscuring what is the fundamental issue here -- the United States mistreated detainees in violation of its own laws and its international obligations. The Obama administration is fighting the claim because that's what lawyers do when sued -- fight until and unless an honorable settlement becomes clear. And what about Padilla himself? The government withdrew the dirty bomb charges and put him on trial for an unrelated conspiracy, for which he was convicted and sentenced to 17 years in prison, even though he likely has gone insane while incarcerated -- if he wasn't insane already. So, whether Padilla's family can sue or not, all the legal arguments in the world cannot change that the U.S. government's reaction to the Sept. 11 attacks went beyond the bounds of civilized conduct. The people have already spoken and replaced the Bush administration -- it's time for the legal system to stop obfuscating and start putting the responsible officials on trial.

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