Blog of Rights

"Donald Rumsfeld Is Above the Law and Jose Padilla Is Beneath It"

By Suzanne Ito, ACLU at 5:06pm

In the case of Jose Padilla, nothing moves swiftly. He was arrested in March 2002, held without charge for two years in a South Carolina military brig without access to a lawyer, and was tortured to the point that brig authorities described his behavior (or lack thereof) as "like a piece of furniture." The Bush administration sought to justify his detention and subjecting him to harsh interrogation methods in part by claiming Padilla was plotting with al-Qaeda to detonate a radiological “dirty bomb” in a U.S. city, but no evidence of such a plot has been presented in court. A maze of several legal proceedings, including one trip to the Supreme Court and back again to lower courts, landed Padilla where he is today.

Still without justice.

On Monday, the ACLU argued before a federal court judge in Charleston, S.C.,  that Padilla's case against former Defense Secretary Donald Rumsfeld and other government officials for their role in his unlawful detention and torture should not be dismissed.

Yesterday, the federal court judge ruled in the government's favor and dismissed Padilla's case. The ACLU's Ben Wizner, who argued the case, said in a statement yesterday:

The court today held that Donald Rumsfeld is above the law and Jose Padilla is beneath it. But if the law does not protect Jose Padilla, it protects none of us, and the executive branch can simply label citizens enemies of the state and strip them of all rights — including the absolute right not to be tortured. If Jose Padilla is not allowed his day in court, nothing will prevent future administrations from engaging in similar abuses.

Salon.com's Glenn Greenwald pointed out that overseas, in the U.K., Canada and Australia, governments are admitting culpability in their collusion with the U.S. in the torture and detention of prisoners, and are investigating, apologizing and paying reparations. Only in the U.S. is this kind of accountability lacking. Greenwald adds, in a post aptly titled "U.S. Justice v. the World":

After the U.S. Government implemented a worldwide regime of torture, lawless detention, and other abuses, the doors of the American justice system have been slammed shut in the face of any and all victims seeking to have their rights vindicated or even their claims heard. If an American citizen can't even sue political officials who lawlessly imprison and torture him in his own country -- if political leaders are vested with immunity from a claim of this type -- what rational person can argue that the rule of law or the Constitution binds our government officials?

In addition, in December 2009, we filed a Freedom of Information Act (FOIA) lawsuit against the Justice Department's Office of Professional Responsibility seeking an unredacted copy of the infamous OPR report that was eventually released in February 2010. After its release, we argued that the DOJ had improperly withheld some parts of the OPR report, and that those sections must be disclosed.

On Tuesday, we got a bad decision in that case too: the judge found that that DOJ can keep those redacted portions secrets, and can even withhold information contained in the OPR report even if it describes illegal activity.

Yes, that's as horrifying as it sounds.

These two decisions this week capture the dismal state of torture, transparency, and accountability. You, Jose Padilla, and I are beneath the law. Donald Rumsfeld, Paul Wolfowitz and CIA officials who tortured prisoners in U.S. custody are above the law. As Ben said: "If the law does not protect Jose Padilla, it protects none of us."

The fight for accountability for torture continues. To learn more and see for yourself the documented evidence of the Bush torture program, visit The Torture Report. And if you haven't done so already, tell Attorney General Eric Holder we need a full investigation of those responsible for that torture.

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