Legitimizing Indefinite Detention and Torture

Andrew Rosenthal writes in the New York Times yesterday (Tortured Logic) about the unfortunate decision by the Ninth Circuit Court of Appeals, granting immunity to John Woo, a former Bush administration official, for his actions which lead to the torture and abuse of Jose Padilla. Rosenthal correctly calls the judgment what it is: nonsense.

Let me back up, for those of you not familiar with the case. Jose Padilla was basically a punk kid with a long rap sheet including manslaughter; he was involved in gangs most of his life. He converted to Islam, got involved loosely with al-Qaeda, and travelled to the Middle East. In May 2002 federal agents arrested him at the Chicago Airport and detained as a material witness.

The next step is where things went very very wrong. Two days before the courts were to rule on the legality of holding Padilla under the material witness warrant, the Bush administration designated Padilla as an “enemy combatant,” transferred him to a military prison, and held him for the next four years without charging him with a crime.   During that four years, Padilla, an American citizen, was subjected to numerous “harsh interrogation” methods … in other words, he was tortured.

Padilla alleged that he was subjected to prolonged isolation; deprivation of light; exposure to prolonged periods of light and darkness, including being “periodically subjected to absolute light or darkness for periods in excess of twenty- four hours”; extreme variations in temperature; sleep adjustment; threats of severe physical abuse; death threats; administration of psychotropic drugs; shackling and manacling for hours at a time; use of “stress” positions; noxious fumes that caused pain to eyes and nose; loud noises; withholding of any mattress, pillow, sheet or blanket; forced grooming; suspensions of showers; removal of religious items; constant surveillance; incommunicado detention, including denial of all contact with family and legal counsel for a 21-month period; interference with religious observance; and denial of medical care for “serious and potentially life-threatening ailments, including chest pain and difficulty breathing, as well as for treatment of the chronic, extreme pain caused by being forced to endure stress positions.”

Neither administration lawyers, nor the court, took any issue with Padilla’s allegations. Rather, they argued that even if he was tortured, Woo should be immune to judgment anyway. And, unfortunately, they won.

In 2006, fully four years after he was detained, the Bush administration finally filed charges against Padilla.  He was convicted of conspiracy and sentenced.

I don’t question the conviction. Undoubtedly Padilla is a bad character, and I for one don’t particularly want him running around attacking and killing Americans.  But that doesn’t let off the hook the administration officials who made decisions which fly in the face of American ideals.

The right of to challenge your detention at the hands of the state has been enshrined in our law since the founding of this country, and goes back to hundreds of years prior in England. The Bush administration (and now the Obama administration unfortunately) has turned this on its head, by arguing that all it takes is for the President or his aids to make a murky closed-door determination that someone is a threat in order to do away with that right.

This isn’t a question of whether or not the President has the right to lock up terrorists. Supporters of this kind of thing will huff and puff about how we were in danger, and the President has to have the right to do whatever the hell he wants in order to protect America.  Obviously those of us who question that must hate America and we should move to some place like Iran.

No. What this is about is simple.  Can the President decide that YOU are the enemy, and lock you up indefinitely without charge, without access to an attorney, without access to your family, simply on his say-so?  Can the President order your execution without ever filing a criminal charge? Can the President have you assassinated in your home because some people in a dark room in the back of the White House designate you a danger?

According to the last two Presidential administrations, the answer to these questions is yes.