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OpEdNews Op Eds    H3'ed 6/13/09

Obama Still on Wrong Side of Torture - Padilla v Yoo

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The Obama administration is continuing to actively pursue the Bush administration's assertion of immunity for those who crafted, approved, and engaged in torture. Yesterday, the Department of Justice and John Yoo were handed a stinging rebuke by Bush appointed Judge Jeffrey White of the Northern District of California. In the complaint (Padilla v Yoo amended complaint 23 pages pdf), Padilla is suing John Yoo for being directly responsible for his detention, the violation of his Constitutional rights, and being subjected to torture and abuse. The basis of the case was to determine if Padilla was within his rights to pursue his complain against Yoo. In most regards, Judge White states in his opinion (Opinion in Padilla v Yoo  - alternate link - 42pages pdf) that Padilla has basis to pursue his suit. Here are a few notable excerpts from Judge White's opinion.
"Padilla also alleges that he has suffered gross physical and psychological abuse upon the orders of high-ranking government officials as part of a systematic program of abusive interrogation which mirror the abuses committed at Guantanamo Bay." p2-3
What is notable here, is the admission within the Judge's opinion that the interrogation methods experienced by Padilla in his three years and eight month detention at the Naval Consolidated Brig in Charleston, South Carolina were the same "abuses committed at Guantánamo Bay." This is notable on two counts. First, that Padilla was subjected to these techniques (detailed on pages 4-5 of the opinion, with associated Constitutional violations on 9-10). Second, because of the specious argument that no such "techniques" were used at Guantánamo (and were therefore not "exported" to other facilities - notably Abu Ghraib).
Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review." p 21-22
Here, Judge White is responding to Yoo's request to place not only his direct (and self-admitted) actions regarding torture and Padilla's case in particular, but that the very work that he did, under the shield of immunity. Judge White offers his opinion that such a shield does not exist.
ii. Eighth Amended Prohibition Against Cruel and Unusual Punishment Yoo contends that because Padilla was not convicted of a criminal offense at the time of his military detention, the Eighth Amendment prohibition against cruel and unusual punishment does not apply to him." p35
I believe that the quote above is exemplary of the convoluted "logic" of both Yoo and the Bush administration. First, they create a new "category" of detainee to get around both U.S. law and international agreements. He then argues that because Padilla was not "convicted" that the guarantees against "cruel and unusual punishment" do not apply. A lot is being written elsewhere about the opinion, and it is not my goal to repeat those pieces here. I believe that there is much to be gained by taking a half hour and reading the Judge's opinion. It not only details this specific case, but goes into the legal arguments of other cases, and pertinent memos which have been released. Related Articles and Documents Padilla v. Yoo - Judge denies motion to dismiss "torture memos" case. Constitutional Law Prof Blog. 6/13/2009. Padilla v Yoo suit (1/04/2008) Obama administration backs immunity for author of Bush torture memos. Patrick Martin. WSWS. 6/09/09. San Francisco judge rules convicted terrorist Padilla can sue Bush aide over torture memos. Don Thompson. AP. 6/13/09. Judge Presses Government on Torture Memo Liability. Dan Levine. Law Journal. 6/09/09. Judge: Ex-Bush lawyer can be sued over torture. Bob Egelko. SF Chronicle. 6/13/09. Judge rules Padilla can sue over torture memos. USA Today/AP. 6/13/09. Judge Allows Civil Lawsuit Over Claims of Torture. John Schwartz. NY Times. 6/13/09.
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Rowan Wolf is an activist and sociologist living in Oregon. She is the founder and principle author of Uncommon Thought Journal, and Editor in Chief of Cyrano's Journal Today.

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