Fighting for a Day in Court for an American Tortured on U.S. Soil

The ACLU was in court yesterday trying to hold officials accountable for the torture of U.S. citizen Jose Padilla. In 2002 he was taken from a New York jail by the military, declared an “enemy combatant,” and secretly transported to a Navy brig in Charleston, South Carolina.

He was imprisoned without charge for nearly four years, subjected to extreme abuse, and unable to communicate with his lawyers or family for two years. The illegal treatment included forcing Padilla into stress positions for hours on end, punching him, depriving him of sleep and threatening him with further torture and death.

In February 2007, Padilla filed a lawsuit against former Defense Secretary Donald Rumsfeld and other officials. Earlier this year the U.S. District Court in South Carolina ruled that the defendants were entitled to “qualified immunity” for their roles in the arbitrary detention and brutal abuse of Padilla because no “clearly established” law prohibited the torture of an American citizen designated an “enemy combatant” by the executive branch. Yesterday ACLU National Security Project Litigation Director Ben Wizner asked the U.S. Court of Appeals for the Fourth Circuit to reinstate the case. Here’s are some highlights from the arguments, reported by the Associated Press:

Judge J. Harvie Wilkinson III asked whether the court should open the door to… litigation for several reasons, including the possibility that government officials tasked with interrogating or detaining terrorism suspects might be deterred from taking some actions that could protect public safety and human lives.

But Wizner said such deterrence of abuse is “a virtue, not a vice.”…

Richard D. Klingler, a lawyer for former brig commander Catherine T. Hanft, said that allowing Padilla’s lawsuit to proceed would improperly allow the courts to interfere in military matters.

“Can the military never be sued?” Judge Diana G. Motz said. “That’s not true.”

An attorney representing Rumsfeld, David B. Rivkin Jr., argued that military law already protects the rights of those in military custody, and Padilla already was entitled to file complaints about his treatment under a system that specifically addressed military detentions.

But Wizner said Padilla’s lawsuit involves a civilian U.S. citizen illegally detained in a military jail.

Wizner argued that by depriving him of counsel and isolating him, the government denied Padilla access to that system. If the civil case isn’t allowed to proceed, he said, authorities would be allowed to subject others to the same unconstitutional seizure and illegal detention.

The courts have dismissed other lawsuits brought by victims of the Bush administration’s torture policy, but Padilla’s is unique. As Wizner puts it, “If the law does not protect Jose Padilla — an American citizen arrested on American soil and tortured in an American prison — it protects no one.”

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