The abdication of U.S. federal judges in the post-9/11 era, and
their craven subservience to Executive Branch security claims, has been a
topic I've written about several times over the past couples of weeks. Yesterday, the 9th Circuit Court of Appeals adopted the argument
of the Obama DOJ that John Yoo is -- needless to say -- fully immune from
any and all liability for having authorized the torture of Jose
Padilla, on the ground that the illegality of Yoo's conduct was not "beyond debate" at the time he engaged in it.
Everything I wrote a couple of weeks ago about the identical shielding of Donald Rumsfeld by federal courts and the Obama DOJ from similar claims applies to yesterday's ruling, and The New York Times has a good editorial today condemning this ruling as "misguided and dangerous."
In sum, this yet again underscores that of all the American institutions that have so profoundly failed in the wake of 9/11 to protect the most basic liberties -- Congress, both political parties, the establishment media, the Executive Branch, the DOJ specifically -- none has been quite as disgraceful as the federal judiciary, whose life tenure is supposed to insulate them from base political pressures that produce cowardly and corrupted choices. And yet, just consider these two facts:
(1) not a single War on Terror victim -- not one -- has been permitted to sue for damages in an American court over what was done to them, even when everyone admits they were completely innocent, even when they were subjected to the most brutal torture, and even when the judiciary of other countries permitted their lawsuits to proceed; and,
(2) not a single government official -- not one -- has been held legally accountable, either criminally or even civilly, for any War on Terror crimes or abuses; perversely, the only government officials to pay any price were the ones who blew the whistle on those crimes.
That is how history will record the behavior of American federal judges in the face of the post-9/11 onslaught of anti-Muslim persecution and relentless erosions of core rights.