Tuesday, September 28, 2010

End Torture NOW

When President Obama ran for office, he promised that Bush policies on torture and state secrecy would change, that the US would follow the Geneva conventions, and that Guantanamo would be closed. Soon after his inauguration, President Obama issued a statement saying that the United States would end the practice of torture, but little has changed. He called for the closure of Guantanamo but has not yet done so. Invoking the state secrecy act, the Holder justice department refuses to investigate or prosecute cases of torture that took place during the Bush administration, and has even blocked efforts to seek compensation by victims of torture. President Obama needs to be pressured to live up to his promises, and Congress also needs to know this is an issue that voters care about.

What can we do to end US-sponsored torture?

First, educate ourselves and our neighbors about this problem. Invite expert speakers to your meeting, organize interfaith panel discussions, or show the NRCAT-sponsored video "Ending US-Sponsored Torture Forever; a study for people of faith." (Copies are available for free.)

Second, become involved with organizations like the Quaker Initiative to End Torture (QUIT) and the National Religious Campaign to End Torture (NRCAT). NRCAT recommends specific actions we can take to make a difference. For instance, the Department of Health and Human Services declined to investigate the CIA’s alleged torture experiments. We are urged to tell the President and the Attorney General to ensure a thorough investigation of the allegations.

NRCA also provides a wealth of information and templates for op ed pieces we can submit to local newspapers. It not only alerts us to specific legislation and opportunities to make a difference inside the Beltway, it can help us to make the connection between national and local issues (such as the cruel and inhumane treatment of inmates in our prisons).

During the conference, we also learned about local actions that we can take. Here are a few examples:

  • Friends in Boise, Idaho, have helped convince local religious leaders to take a stand against torture--no small achievement in this conservative region. Boise Friends also crafted a minute on torture that was approved by North Pacific Yearly Meeting.
  • Friends in Berkeley has worked with others to convince the City Council to approve a resolution calling for a “Say no to torture” week, Oct 10-16.

  • Chuck Fager and others have been working locally in Fayetteville, NC (the site of Fort Bragg) to convince the city council to do something about rendition flights taking off from the county airport. No action has been take yet, but Chuck is convinced that "patience and determination" will ultimately pay off. (He has written an excellent little booklet with that title, with "tools for ending torture and seeking accountability." You can order it by emailing him at chuckfager@aol.com)

We heard inspiring stories about anti-torture work in Monterey, Los Angeles and other places. I told about the work done in LA by Interfaith Communities for Justice and Peace when it launched a NRCA campaign just prior to the election of Obama. I explained how important it is for non-Muslims to stand in solidarity with Muslims on this issue since sometimes Muslims are nervous about taking the lead without support from those of other faiths. Muslims are most likely to be victims of US torture so it is a vital concern for this faith community.

We had events at a synagogue, mosque and cathedral, with participation from major religious leaders from LA as well as by experts on this subject. Interfaith delegations went to over a dozen Congressional offices. We circulated petitions urging Obama to end torture. The South Coast Interfaith Council, one of the largest interfaith groups in the Long Beach area, with over 140 congregations under its umbrella, took a strong stand against torture. Dedicated activists like Betsy Hailey and Virginia Classics have continued this work with the Valley Interfaith Council, All Saints Church in Pasadena, etc. I am the official rep for Santa Monica Friends Meeting to ICUJP. Our Meeting approved a minute opposing torture which was approved by Pacific YM a couple of years ago.

NRCAT supports these local efforts in a variety of ways, sometimes providing expertise and sometimes grants.

Speakers at this conference included Scott Horton, a human rights lawyer and activist; Terry Kupers, a psychiatrist who has studied torture and "cruel and unusual punishment" in US prisons; Hector Artistizabal, an actor/psychotherapist/healer from Colombia; and Father Roy Bourgeois, the Jesuit priest who had made it his life's work to end torture in Latin America and to close the infamous School of the Americas.

Five years ago, in 2005, the first QUIT conference took place at Guilford College in North Carolina and drew 130 people. The next two conferences drew over 100 people. This one at the Ben Lomond Quaker Center attracted only 35, in part because of the economy, in part because of the location (there are fewer Quakers out West), and in part because many people imagine that torture is no longer an issue with the Obama administration. Sadly, this isn’t true. President Obama has continued Bush’s torture regime. Little has changed.

John Calvi, one of the founders of QUIT, is a Quaker spiritual healer who became aware of this issue when victims of torture from Central America came to him for trauma healing. This first-hand experience with victims of torture had a profound effect upon John. He began to investigate the issue of torture, and what he discovered shocked him deeply. He was especially horrified to learn that children were being detained at Guantanamo. As will discussed later, the show case trial that is now taking place at a military tribunal in Guantanamo involves young man who was fifteen-year old when he allegedly killed a US soldier. This teenager has been tortured, threatened with sexual assault, and denied basic rights guaranteed under international and US law. From a legal as well as PR viewpoint, this case is a train wreck and an PR disaster. Yet the trial goes on. John told us it is very hard emotionally to accept the reality that “torture has become a world-wide business, and that the US has become the McDonalds of torture.”

“This is subject we don’t like to think about,” John admitted. “It can make us very uncomfortable.” John was moved to tears when he told us that he looks forward to the day when he no longer has to address this issue, when he is “out of work,” and when torture is truly and finally abolished.

It was comforting to explore this issue among the beautiful redwoods and to find healing in nature and in the company of kindred spirits. As John reminds us, to do anti-torture work we must take care of ourselves so we don't become overwhelmed emotionally. During this conference, we learned how to transform our anguish into a loving commitment that can bring healing as well as an end to torture.

On Friday night, Terry Kupers spoke about “cruel and unusual punishment” and torture that is taking place in American prisons. Kupers, an psychiatrist and Professor at the Wright Institute, is one of the leading experts on mistreatment of prison inmates in the USA. He shared horrendous stories about how inmates are treated at super max prisons where people are kept in segregated cells without bedding, books, TV, clothes, or any contact with the outside world. Such sensory and social deprivation is a form of torture. Unfortunately, these forms of psychological torture have been exported to other countries.

What can we do? He said that conservative legislators who support prisons oppose torture and inhumane treatment since it makes prisons look bad. Many who are not persuaded by moral arguments are moved by financial considerations. Super max prisons are terribly expensive and usually lead to longer and more costly sentences.

Inmates by law are entitled to a safe environment in which to serve their sentences. Many are subject to sexual harassment. In Michigan 500 women inmates won a law suit against prison guards who raped them; the settlement was 15 million dollars. Such sexual harassment goes on in prisons throughout the country. Many of those at prisons like Abu Graib were prison guards in US prisons and simply continued practices common here in the USA. (See http://www.freep.com/article/20090721/OPINION05/90721056/Ending-prisoner-rape-in-Michigan)

The prison system of California has been considered a form of "cruel and unusual punishment" because of overcrowding. Overcrowding leads to violence and jeopardizes the safety of inmates. Our prison system can be considered a form of psychological torture, and has been described as "barbaric" by Time magazine: . http://www.time.com/time/nation/article/0,8599,1997219,00.html

We need to tell our elected officials (as well as our friends and neighbors) that the humane treatment of inmates, e.g. drug rehabilitation, is more cost effective than the vengeful treatment of inmates.

Father Roy Bourgeois told his personal story, beginning with the time he served as a chaplain in Vietnam. There he observed that torture was commonplace, and has been a routine practice of the US military ever since. He later became concerned about the use of torture in Bolivia and El Salvador and other parts of Latin America.

When 500 El Salvadoran soldiers went to Fort Benning to be trained by the US military, Roy and others opened up a little house called “Casa Romero” to address the issue of torture. They dressed up a high-ranking officers and brought a boom box with the final sermon of Archbishop Romero where he made a plea to the military asking them to lay down their weapons and stop killing their fellow compasenos. Bishop Romero was a prophetic bishop. He didn’t start out that way—he was a “company man”—you don’t get to be a bishop if you’re an advocate for the poor and for peace—but Bishop Romero had a heart of compassion and he heard the cry of the poor, and he spoke out. So Roy and his friends went into the Fort Benning dressed as officers and climbed a pine tree and began playing the sermon of Bishop Romero. The soldiers came out with their weapons and Roy came down from the tree (but left the boom box there). Roy and his friends were brought to trial, and they were sentenced to prison for a year and a half.

Recently Roy Bourgeois went to Colombia with some other activists and dressed up as "Uncle Sam" (Tio Sam) and engaged in street theater with the military. Dressed as Uncle Sam, he thanked the soldiers for turning over their country to the US.

A man of courage and faithfulness, Father Roy has also spoken out in favor of the ordination of women. The Vatican has threatened to excommunicate Roy, but he remains firm in his commitment to speak the truth to power, beginning with those in his own church.

I should also add that Father Roy is one of the kindest and most loving men I have ever met. He is living proof that you can be both gentle and strong.

Scott Horton, a human rights lawyer and author, has been a tenacious investigator of torture. This year he broke the story that three alleged suicides at Guantanamo were actually murders perpetrated by secret US units. Here are some notes I took during his presentation:

We are all familiar with what happened in the Bush era, and we looked forward to change we can believe in. Has this change happened? If not, why not?

Attorney General Gonzalez recently wrote an article justifying use of torture. He argues that this is justified since the president needs unlimited power during time of war. Gonzalez reduces the Constitution just to the exec branch.

Before becoming President, Obama denounced torture, warrantless wiretaps, State Secret Acts, and promised “to restore standards of due process that have made this country great.”

He issued an exec order condemning torture, outlawed water-boarding, black sites operated by CIA, etc. Now black sites are operated by a different group called JSOC, which is much more secretive.

Obama’s failure to close Guantanamo is troubling. Take the showcase trial of Omar Khadr, who was apprehended in 2002, when he was 15. He has been charged with homicide and giving material aid to terrorism. This case is severely damaging our reputation around the world. First, he was a juvenile offender. Under international law, trials need to be conducted within six months or so. It took two years for him to get an attorney and another three years for charges to be raised. He was kept in solitary confinement and then with adults—both prohibited under international law. He says he was tortured and coercively interrogated. One of Khadr’s interrogators admitted that Khadr was tortured. In 2002 US signed a treaty saying that child soldiers would be treated as victims, to be rehabilitated, not punished. Instead, Khadr was labeled as an enemy combatant. Khadr was a Canadian citizen, and came from a dysfunctional family. His father was a militant Islamist who pushed his son into service of the Taliban. Normally, charges would be brought against the parents, not the child, for reckless endangerment. In Oct 2007, in the midst of the trial, the prosecutor named Davis resigned. Jim Haines, one of Dick Cheney’s protégés, told Davis that the cases should be brought up in a way that would influence the elections. Davis said some of the cases were weak and might lead to acquittals. Haines said there would be no acquittals. Six prosecutors resigned as a result. The Canadian courts ruled that Khadr was tortured and the government had a responsibility to do what it could to removed him from Guantanamo. (See article by Andrew Sullivan, below.)

After Obama is elected, the defense shows that key evidence of interrogation was deliberately destroyed—which is a felony, namely, obstruction of justice. Doctors discover that Khadr was blinded in one eye while under US custody, and a wound inflicted on him six inches in size. Evidence is also introduced indicating he probably didn’t kill an American soldier.

Horton says this case is a "nightmare and train wreck" from a legal standpoint.

From the standpoint of Nuremberg, this case doesn’t make sense as a war crime trial. By bringing this case, the US shows it fails to live up to international law and its own standards of justice. Second, the actual evidence is weak and contradictory. Prosecutors introduced evidence that a soldier confessed that he shot Khadr while he was unarmed and captured—this is a war crime. Third, the only evidence they have is a confession by Khadr, exacted through torture. Fourth, it is bogus for the US to claim it is a war crime for a civilian to kill a soldier. If this is true, we are committing war crimes every time we authorize private security forces to kill civilians. This is what Horton calls the “Khadr boomerang.”
Why are they doing this? Why didn’t he reverse course and pull this case?

The Obama team asked the prosecutors to reevaluate their cases under new standards, but so little pressure was exerted that the prosecutors simply said, “We are going forward. Nothing wrong was done.”

Why didn’t White House intervene? Some White House staff such as Greg Craig et al were serious about abolishing torture. These people were forced to resign.

Rohm Emanuel: “Look forward, don’t look back.” In other words, continue the Bush policy. This policy is seen as ridiculous in Europe, where efforts have been made to prosecute Americans guilty of aiding and abetting torture. (See article below about Spanish judges.)

The President has decided it isn’t politically advantageous to oppose torture.

JSOC (Joint Special Operations Commission) operates a black site at Bagram etc. Some of the worst practices took place at JSOC sites. JSOC was exempted from the regulations on torture.

The use of torture seems to have lessened after 2005, but it hasn’t disappeared.

Anyone who wants to know more about torture should definitely follow the writings of Scott Horton. He is amazingly well-informed.

Hector Arizstizabal, a native of Medillin, Columbia, was a victim of torture and lost his brother to the violence in his country. A psychotherapist, he fled Columbia and came to the USA where he earned a degree in Marriage and Family Therapy. For the last 15 years he has been involved wit the Theater of the Oppressed and gives workshops in hot spots around the world, including Israel-Palestine, Afghanistan, and Columbia.

He led us in light-and-lively games, and then some exercises to help us get in touch with our feelings about torture at a feeling level. His healing work is truly amazing. His joy and enthusiasm inspire hope. He is one of the most powerful healers I have ever encountered.

We concluded the weekend workshop by sharing stories of what we are doing in our own communities to end torture.

We ended our conference with a time of worship in the redwood circle, an outdoor worship space, where we met on each previous day. During our last meeting for worship, a young man named Noah Merrill, who works for the AFSC in Washington, DC, gave a short message that inspired me to write this poem:

Breathing hope

(written at a quaker conference to end torture at the ben lomond quaker center in the redwoods near santa cruz)

“for love to enter
and lies to cease,
we must breathe hope”

these words were spoken by a young man
aptly named noah
as we sat in a circle and worshipped
under the tall magnificent trees
whose silence
is deeper than we can know
our anger and pain and fears subsided
in the deep, healing silence
in the comforting shade of trees
whose hopeful branches are uplifted towards the light
whose leaves turn light and air and water
into cathedrals of peace

this everyday miracle is accomplished
one cell,
one leaf at a time
with water from deep below
and light from a nearby star
and from the surrounding air,
the unseen molecules of air
enveloped by this deep mystery
we sit and wait for the light
to transform us
light that comes from we know not where

we breathe in, we breathe out, we let our breathing go
we know not where our breath goes, our life goes,
we know only this
we are one with these trees
and with each other
and with all who live and suffer
trusting this light will be transformed
in us
through us
beyond us
into words and actions deep and strong as these trees

Torture Business Close to Home

Jappensen, an airline company that helped the CIA arrange flight to "render" terrorism suspects to countries where they could be tortured, is located in San Jose, CA. Rendition is illegal under US and international law, but the Obama administration used the old Bush excuse of "state secrecy" to deny defendants their day in court to sue the airline. On Sept 6, the appeals court sided with the administration and threw out the case on state secrecy grounds, even though it is no secret that Jeppensen arranged for the defendants to be flown to countries where they were tortured. The Obama administration won praise from The Wall Street Journal for upholding Bush policies, but those who oppose torture (such as the ACLU) are outraged.

Quoth the Wall Street Journal:

"Another week, another legal vindication for the Bush, er, the Obama Administration's war on terror. On Wednesday, the Ninth Circuit Court of Appeals cited the executive branch's state-secrecy privilege to dismiss an ACLU attempt to challenge the legality of sending terror suspects from the U.S. to other countries. Our friends on the left are now going nuts about "torture flights," but we'll take this decision as evidence that this Administration has its grown-up moments."

For the views of those who oppose torture, see:


Obama's Use Of Tortured Evidence
by Andrew Sullivan

12 Aug 2010 10:48 am

Jennifer Turner at the ACLU argues that "although President Obama promised transparency and sharp limits on the use of tortured and coerced statements against the accused," a detainee captured during the Bush years and sentenced earlier this week at Guantanamo Bay continues America's pattern of abuse.

Khadr, then 15 years old, was taken to Bagram near death, after being shot twice in the back, blinded by shrapnel, and buried in rubble from a bomb blast. He was interrogated within hours, while sedated and handcuffed to a stretcher. He was threatened with gang rape and death if he didn't cooperate with interrogators. He was hooded and chained with his arms suspended in a cage-like cell, and his primary interrogator was later court-martialed for detainee abuse leading to the death of a detainee. During his subsequent eight-year (so far) detention at Guantánamo, Khadr was subjected to the "frequent flyer" sleep deprivation program and he says he was used as a human mop after he was forced to urinate on himself.

In closing arguments before the judge's ruling, Khadr's sole defense lawyer, Lt. Col. Jon Jackson, told the judge, "Sir, be a voice today. Tell the world that we actually stand for what we say we stand for."

Though President Obama promised that coerced evidence would not be used against detainees in the military commissions, today's ruling suggests that as a country, we stand for abusing a 15-year-old teenager into confessing, and using those confessions against him in an illegitimate proceeding.

The danger of torture is not just the act of torture. It is the way in which the powerful can produce the confessions they want. And the necessity of proving, in this case, that imprisoning and torturing a 15 year-old was not a mistake makes the government double down even further. What happens is that physical force is introduced into the system of alleged justice. There is no justice then; just power.

"Philippe Sands, the British lawyer, and author of Torture Team, which provided much of the first-hand evidence for [Spanish Judge Baltasar] Garzón’s case... stated that there was 'no legal barrier' to prevent Judge Garzón’s prosecution from proceeding...

"He also explained that [U.S. Attorney General] Eric Holder’s [recent decision to appoint a special investigator] is only a first step, 'limited to cases in which interrogators may have exceeded the limits formally approved by lawyers in the Justice Department’s Office of Legal Counsel,' [and] that the architects of the 'legal decisions that purported to justify the use of torture are not in immediate danger in the United States...' "


Spanish judge resumes torture case against six senior Bush lawyers

The Spanish newspaper Público reported exclusively on Saturday that Judge Baltasar Garzón is pressing ahead with a case against six senior Bush administration lawyers for implementing torture at Guantánamo.

Back in March, Judge Garzón announced that he was planning to investigate the six prime architects of the Bush administration’s torture policies — former Attorney General Alberto Gonzales; John Yoo, a former lawyer in the Justice Department’s Office of Legal Counsel, who played a major role in the preparation of the OLC’s notorious “torture memos”; Douglas Feith, the former undersecretary of defense for policy; William J. Haynes II, the Defense Department’s former general counsel; Jay S. Bybee, Yoo’s superior in the OLC, who signed off on the August 2002 “torture memos”; and David Addington, former Vice President Dick Cheney’s Chief of Staff.

In April, on the advice of the Spanish Attorney General Cándido Conde-Pumpido, who believes that an American tribunal should judge the case (or dismiss it) before a Spanish court even thinks about becoming involved, prosecutors recommended that Judge Garzón should drop his investigation. As CNN reported, Mr. Conde-Pumpido told reporters that Judge Garzón’s plans threatened to turn the court “into a toy in the hands of people who are trying to do a political action.”

On Saturday, however, Público reported that Judge Garzón had accepted a lawsuit presented by a number of Spanish organizations — the Asociación Pro Dignidad de los Presos y Presas de España (Organization for the Dignity of Spanish Prisoners), Asociación Libre de Abogados (Free Lawyers Association), the Asociación Pro Derechos Humanos de España (Association for Human Rights in Spain) and Izquierda Unida (a left-wing political party) — and three former Guantánamo prisoners (the British residents Jamil El-Banna and Omar Deghayes, and Sami El-Laithi, an Egyptian freed in 2005, who was paralyzed during an incident involving guards at Guantánamo). The newspaper reported that all these groups and individuals would take part in any trial.

It is, at present, uncertain whether another attempt to stifle Judge Garzón will derail him, as he is not known for letting adversaries stand in his way. At the end of June, the Spanish Parliament pointedly passed legislation aimed at “ending the practice of letting its magistrates seek war-crime indictments against officials from any foreign country, including the United States,” on the basis that no Spanish Court should be able to judge officials of foreign countries except when the victims are Spanish or the crimes were committed in Spain.

However, on Sunday, when Público spoke to Philippe Sands, the British lawyer, and author of Torture Team, which provided much of the first-hand evidence for Garzón’s case, Sands explicitly stated that there was “no legal barrier” to prevent Judge Garzón’s prosecution from proceeding. He explained that he believed the recent decision by US Attorney General Eric Holder to appoint a special investigator to investigate cases of torture by the CIA is related to the Spanish lawsuit and the importance it has acquired because of its instigation by Judge Garzón. Sands told Público, “The recent decision by Eric Holder emphasizes how appropriate the Spanish investigation is. Many commentators believe that this decision has had a significant and direct impact in the United States, reminding people that there is an obligation to investigate torture.”

He added, “Judge Garzón’s actions have acted like a catalyst, and are supported by many people in the United States, including some members of Congress. He has reminded everybody that a blind eye cannot be turned to these actions and that there are people who are not going to let that happen.” He also explained that Eric Holder’s gesture is only a first step, “limited to cases in which interrogators may have exceeded the limits formally approved by lawyers in the Justice Department’s Office of Legal Counsel,” that the architects of the “legal decisions that purported to justify the use of torture are not in immediate danger in the United States,” and that there is, therefore, “no legal barrier to the continuation of the Spanish investigation.”

He concluded by stating that it was “important” that Judge Garzón proceeds with the case in Spain, because, although Eric Holder “has confirmed the importance of the Convention Against Torture, he has taken only a first step that “does not really address the actions of those who were truly responsible for its violation.”

Note: I wish to extend my thanks to Carlos Sardiña Galache for alerting me to the latest developments in this important story, which was not mentioned in the English-speaking press, and for translating crucial passages.

FORUM (FORUM & FOCUS) • Jun. 19, 2009
Taking On Torture

By Stephen Rohde

As the debate continues over whether President Obama will seek criminal prosecutions against former Bush administration officials for authorizing and carrying out torture and cruel, inhumane and degrading treatment of detainees, one of the victims is taking the law into his own hands.

Jose Padilla, an America citizen labeled an "enemy combatant" by Bush, has filed an unprecedented civil lawsuit against John Yoo, former deputy attorney general in the Office of Legal Counsel, seeking $1 in damages and a declaration that Yoo violated his constitutional rights.

On June 12, in the first court ruling addressing Yoo's role in the "war on terror," U.S. District Judge Jeffrey S. White, a Bush appointee, denied Yoo's motion to dismiss the suit. White, quoting Alexander Hamilton, wrote: "[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free."

For White, the task was to "strike the proper balance of fighting a war against terror, at home and abroad, and fighting a war using tactics of terror."

Padilla was arrested in 2002 at Chicago's O'Hare Airport. After Bush declared him an enemy combatant, Padilla was transported to a naval brig in Charleston, S.C., where he was detained for three years and eight months, without charges or access to legal counsel.
We hear much about the abuse of detainees in Guantanamo and in secret CIA prisons around the world, but few are aware of the torture that is alleged to have occurred right here in America. Padilla and his legal counsel have alleged numerous abuses.

While he was detained, government officials subjected Padilla to interrogation tactics and policies such as: extreme and prolonged isolation; deprivation of light and exposure to prolonged periods of artificial light, sometimes in excess of 24 hours; extreme and deliberate variations in temperature; sleep adjustment; threats to subject him to physical abuse, including threats to cut him with a knife and pour alcohol into the wounds; threats to kill him immediately; threats to transfer him to a foreign country or Guantanamo, where he was told he would be subjected to far worse treatment; making him believe that he was being administered psychotropic drugs against his will; shackling and manacling for hours at a time; forcing him into stress positions; requiring him to wear earphones and black-out goggles during movement to, from and within the brig; introduction into his cell of noxious fumes that caused pain to the eyes and nose; lying to him about his location and the identity of his interrogators; government agents banging on the walls and bars of his cell or opening and shutting the doors to nearby empty cells; withholding of a mattress, pillow, sheet or blanket, leaving him with nothing to sleep or rest on except a cold steel slab; forced grooming; sudden and unexplained suspension of showers; sudden and unexplained removal of religious items; constant surveillance, including during the use of toilet facilities and showers; deprivation of access to any form of information about the outside world, including radio, television and newspapers from the time of his imprisonment until summer 2004, at which time he was allowed very limited access to such materials; denial of sufficient exercise and recreation and, when permitted intermittently, only in a concrete cage and often at night; denial of any mechanism to tell time in order to pray in keeping with the Muslim practice; denial of access to the Koran for most of his detention and complete deprivation or inadequate medical care.

According to the lawsuit, Yoo was "the de facto head of war-on-terrorism legal issues" and a "key member of a small, secretive, and highly-influential group of senior administration officials know as the 'War Council.'" As Yoo admits in his book, "War By Other Means," he "developed an extrajudicial, ex parte assessment of enemy combatant status followed by indefinite military detention, without notice of opportunity for a hearing of any sort ... completely preclud[ing] judicial review of the designation."

Declining Yoo's request to abstain, the court noted "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. Padilla's allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power."

Notably, the court pointed out that like any other government official, "government lawyers are responsible for the foreseeable consequences of their conduct." For example, in Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006), the court found an assistant city attorney liable where she researched the law and drafted a letter denying a protest group's application for a parade permit based on the content of their speech.

Although senior city officials revised the letter, and others approved and eventually signed the denial of the permit, the court found that the drafting of a legal opinion justifying unconstitutional conduct was "a substantial factor" in the decision to deny the parade permits and violated the plaintiffs' First Amendment rights.

Similarly, in Anoushiravani v. Fishel, 3:2004CV00212 (D. Ore. July 19, 2004), in denying a motion to dismiss by two Department of Homeland Security attorneys who advised customs agents that they could constitutionally refuse to release seized property, the court held that the attorneys could be liable for their personal participation in the deprivation of constitutional rights because the seizures were a foreseeable result of their legal advice, citing United States Securities and Exchange Commission v. Fehn, 97 F.3d 1276 (9th Cir. 1996), in which the court found that a awyer may be liable for substantially assisting in a violation of the law by issuing advice in violation of the law.

According to the complaint, Attorney General John Ashcroft relied on Yoo's opinion in recommending that Padilla be taken into military custody. Yoo allegedly has represented that "he had security clearance to, and in fact did, 'read the intelligence reports' on Mr. Padilla before purporting to provide legal authority for Mr. Padilla's designation and detention."

Following a meeting of the War Council in July 2002 in which Yoo and fellow council members "'discussed in great detail how to legally justify' 'pressure techniques proposed by the CIA,' including waterboarding, mock burial, and open-handed slapping of suspects, [Yoo] wrote his August 1, 2002 memo, stating that acts of interrogation would not constitute torture unless they caused pain 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'"
Padilla alleges that Yoo "intended or was deliberately indifferent to the fact that Mr. Padilla would be subjected to the illegal policies [Yoo] set in motion and to the substantial risk that Mr. Padilla would suffer harm as a result. [Yoo] personally recommended Mr. Padilla's unlawful military detention as a suspected enemy combatant and then wrote opinions to justify the use of unlawful interrogation methods against persons suspected of being enemy combatants. It was foreseeable that the illegal interrogation policies would be applied to Mr. Padilla, who was under the effective control of the U.S. Southern Command - the same military authority that controlled Guantanamo - and was one of only two suspected enemy combatants held at the Brig."

The court held that "the specific designation as an enemy combatant does not automatically eviscerate all of the constitutional protections afforded to a citizen of the United States."
While it remains to be seen whether Obama will have the courage to go beyond his lofty rhetoric that no one is above the law, the first real opportunity to hold a key Bush lawyer accountable for his direct participation in the discredited and shameful program of torture and abuse may well come from a man who was himself victimized by that very program.

Stephen Rohde, a constitutional lawyer and author, is chair of the ACLU Foundation of Southern California and president of Interfaith Communities United for Justice and Peace.

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