Slow Motion Avalanche

This jumped past me last week, but a federal judge ordered John Yoo to testify in a case filed by Jose Padilla, who was held in a Navy brig for years and slowly driven insane under the enemy combatant policies of the last regime. Ady Barkan thinks this could actually provide some accountability.

In 2002, Justice Department lawyer John Yoo wrote a memo recommending that Jose Padilla, arrested in Chicago in the wake of 9/11 and held on suspicion of plotting a dirty-bomb attack, be classified as an enemy combatant. Yoo also wrote memos arguing that American law does not prevent the president from ordering such enemy combatants tortured. This January, after enduring years of abuse in prison, Padilla sued Yoo for violating his constitutional rights.

And a week ago, Judge Jeffrey White ruled that Padilla's allegations were plausible enough to justify denying Yoo's motion to dismiss the lawsuit. White was appointed by George W. Bush the year Yoo was writing his memos.

White's decision is the first of its kind: Until now, although other lawsuits have been brought, no government official has faced personal liability for his role in the torture or deaths of detainees. But it probably won't be the last. These cases are just beginning to address the fraught questions of justice that have emerged in the aftermath of the Bush era—what atrocities were committed in the name of national security, who bears responsibility, and how should they be punished? Although neither the Obama administration nor most members of Congress want to deal with these questions directly, they're even more opposed to letting judges (and juries) take a crack at them. Padilla v. Yoo is an example of a surprising development: a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration. It could help spawn more such rulings.

The Obama Administration actually defended Yoo's plea to skirt testifying in this case, clearly to just close down this issue in the name of moving forwards and not backwards. But White really boxed in the White House now, and every option available to them plausibly leads to more disclosure and more court rulings that would force some measure of accountability. Barkan considers this ruling crucially important, and maybe it is. Remember that Bush lost case after case invalidating his national security procedures, and now Obama has mirrored his predecessor on many of those fronts. Taking the hard line on official secrecy and executive privilege has the benefit of delaying accountability, but as long as there are lawyers willing to seek justice - and there are - they will pursue the avenues made available by favorable rulings. This avalanche may be happening in slow motion, but it's rolling downhill, and even a crafty efforts from the elites to shield themselves from a reckoning may not be enough to stop it.

The End of American Justice

The Jose Padilla trial is in deliberations right now, and attention must be paid. This man was locked up and held without charges for years, most of which with near-total sensory deprivation designed to break him down and give him no hope of survival. He was totrtured mentally and physically without benefit of counsel and without even being charged. At the moment when the Supreme Court was about to step in and rule that it is completely illegal to hold an American citizen in this fashion, the Justice Department decides to find some other charge, totally unrelated to his initial detention, and attach Padilla to it. In order for you to believe the government's case, you have to believe that he understood an invented terrorist code language.

Shorter version from Jose Padilla's lawyer: He was a student, not a terrorist. As to the mujahedeen form with Padilla's fingerprints:

The critical piece of prosecution evidence is a "mujahedeen data form" Padilla allegedly filled out in July 2000 to attend an al-Qaida training camp in Afghanistan. The form bears seven of his fingerprints, but Caruso said they are found only on the first page and the back of the final page — consistent with Padilla simply handling the form, rather than writing on it.

Of the 3,000 taped telephone calls, Padilla's voice was only on 7 of those introduced at trial.

As to the use of code words, Padilla didn't use any on the taped calls. The Government wants the jury to believe that when the other two defendants used words like "tourism" and "football" they meant "jihad" and that the words "eggplant" and "zucchini" were references to military weapons and supplies.

So Padilla is on trial for 1) holding a piece of paper, and 2) hearing the words "football," "eggplant," and "zucchini."

Some justice system we have in this country, eh?

Actually, the real reason Padilla is on trial is that the government can never live down what they did to him in the name of fighting terrorism. We took an American citizen and systematically denied him access to counsel, contact with anyone but interrogators, full sensory deprivation, and really mental torture so that they could "get good information" out of him, none of which has been proven to be accurate or actionable. The gloves came off in 2002 and 2003 and these guys broke every law they could think of so they could show their superiors that they were on the case. Here's Jack Balkin:

Contrary to Jack's suggestion below, then, the Administration did not try to defend Padilla's indefinite, isolated detention -- and the denial of an attorney and of any judicial oversight -- on the ground that "the President thought that Padilla was a dangerous man." If dangerousness had been the issue, the Administration could have simply kept Padilla detained in the ordinary criminal justice system, where he had been. As Jacoby explains, the reason Padilla was moved to indefinite military detention resembling (as Jack notes) classical authoritarian models, was not dangerousness, but instead the Administration's desire to break him in order to obtain possible actionable information about al Qaeda training, planning, recruitment, methods and operations.

So they put Padilla into a secret, undisclosed location and cut off his access to everything we know about American law. THe government defends indefinite detention by saying that they're just trying to protect the public. In that protection, we've completely lost everything about America they mean to defend.

UPDATE: And he's been found guilty. But what of the interrogators and the military commanders and the civilian leadership, who put him into an illegal, unjust detention system for 3 1/2 years, before even bringing this charge? When will they be found guilty?