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A Question for America About Torture

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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April 23, 2012

A petition to the United State Supreme Court begins with the “Questions Presented” — the legal issues that the litigants are asking the high court to resolve. The petition in Estela Lebron and Jose Padilla v. Donald Rumsfeld et al — which the Supreme Court will receive today — poses a single question: “Whether federal officials responsible for the torture of an American citizen on American soil may be sued for damages under the Constitution.”

That the answer to this question could be in any doubt is a measure of how much the rule of law has been degraded in the decade since 9/11.

Time and again, in case after case, U.S. courts have turned away lawsuits filed by the victims of the Bush administration’s torture regime. They refused to hear the case of Khaled El-Masri, a German citizen abducted by the CIA in Macedonia and “rendered” to detention and torture in Afghanistan, on the dubious ground that litigation of the case would expose “state secrets.” They refused to hear the case of Maher Arar, a Canadian citizen detained at JFK airport and transferred by U.S. officials to Syria, where he was brutally tortured, because judicial involvement would allegedly intrude upon the political branches’ responsibilities in foreign policy and national security. They refused to hear the cases of several men tortured in Abu Ghraib, Bagram, and Guantánamo because, the courts held, it had not been “clearly established” that the Constitution prohibited the torture of noncitizens abroad.

In each of these cases, lawyers for the victims objected to the sweeping claims of secrecy and immunity invoked by the torturers and warned that if those claims were upheld, even a U.S. citizen tortured in a U.S. prison might be denied his day in court. What we asserted as an extreme hypothetical has become a deplorable reality in the case of Jose Padilla, a U.S. citizen who was seized by military officials from a civilian jail and subjected to unconscionable brutality in a South Carolina brig. Remarkably, the lower federal courts acceded to the torturers’ claim that the bedrock prohibition against abuse in U.S. prisons must be suspended in the face of asserted “national security” imperatives.

As our petition states:

It is hard to conceive of a more profound constitutional violation than the torture of a U.S. citizen on U.S. soil. With the court of appeals’ holding that Mr. Padilla’s claims of torture — and those of any future victim of similar abuses — are nonjusticiable, our legal system has arrived at the bottom of the slippery slope.

The petition filed by Mr. Padilla and his mother, Estela Lebron, offers the Court — and the country — a critical opportunity to vindicate our laws and our values. If the Court once again averts its eyes from the terrible things that were done to prisoners in our name, it may be a long time before we have another such opportunity.


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