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In Padilla interrogation, no checks or balances

Oversight of the executive branch regarding treatment of terror detainees remains inadequate, say legal analysts.

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Justice Department lawyers are expected to ask that Padilla's suit be thrown out of court because the litigation would likely reveal state secrets about Padilla's interrogation, legal analysts say. Such a move would again prevent public scrutiny of the torture allegations, these analysts say.

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"If they invoke the state secrets privilege, that is the ultimate trump card," says Douglas Kmiec, a professor at Pepperdine University Law School in Malibu, Calif. So far, every time the government has invoked the state secrets privilege in recent years, the case has been thrown out of court, he says.

Civil libertarians and human rights experts say oversight and accountability are important because Padilla's treatment by the military could happen to others.

"This is a dangerous precedent," says Douglas Johnson, executive director of the Minneapolis-based Center for Victims of Torture. "Padilla may well deserve to be put away for the rest of his life, but some key principles of American law and culture were violated, and that means that other people could also be in danger of their rights being violated."

The Center for Victims of Torture seeks to provide a healing environment for those who have faced physical and psychological torture overseas. Dr. Johnson says patients at the center have faced many of the same techniques allegedly used against Padilla.

"Isolation has been a consistent methodology of repressive regimes [overseas]," he says. "It is very, very frightening that our government has chosen to use this methodology."

Padilla's claims are different than those of most people who say they've been tortured. More substantive than merely a verbal accusation, the three psychological reports and Padilla's degraded mental condition represent direct evidence of abuse, say experts in the treatment of torture victims.

"There is a valid and objective way to evaluate all this," says Scott Allen of Physicians for Human Rights and author of a recent PHR/Human Rights First report, "Leave No Mark," that discusses how US interrogators may face criminal liability in the future.

PHR experts are assembling psychological reports and conducting exams similar to those done in the Padilla case, he says. They are gathering evidence from at least seven former detainees at the Abu Ghraib prison in Iraq and the US detention camp at Guantánamo Bay, Cuba.

The report calls on the executive branch to stop using harsh interrogation tactics and to release all government documents related to such tactics. In addition, it asks Congress to exercise its oversight role and ban these interrogation methods.

Congress's oversight record

Two years ago, Democrats in Congress championed a proposal to establish a 9/11-type independent commission to investigate allegations of detainee interrogation abuses. The measure was sponsored by Senator Levin, who complained that the Republican-controlled Congress had failed to aggressively carry out its oversight responsibilities.

Republican opponents of the Levin amendment said the Defense Department had already conducted 12 major investigations into detainee treatment, and Congress had conducted 30 open hearings and 40 closed hearings.

Levin countered that the investigations and hearings had been selective and that large areas – including the legality of certain interrogation techniques – had never been investigated.

"These issues are not going to go away. They can't be swept under the rug," Levin said during the floor debate. "With each passing day, we have new revelations of detainee abuses."

The Levin amendment was defeated in a largely party-line vote in November 2005. The tally: 43 to 55.

A year later, Democrats took control of both houses of Congress. So far, the Democratic leadership has yet to undertake any significant public oversight – such as hearings, investigations, or legislation – on the issue of detainee interrogation.

Political analysts say civil liberties in the war on terror is not a winning issue for Democrats seeking to win the White House in 2008 and to expand their majorities in both houses of Congress.

The result: The conditions of Padilla's interrogation and confinement may remain shrouded in secrecy.

"The Framers believed they had created an independent judiciary and Congress that would check this kind of abuse by the executive [branch]," Professor Turley says.

"In the absence of judicial review, it is possible for Congress to seek legislative guarantees to prevent a repeat of this abuse," he says. "But Democrats appear terrified that they will be accused of supporting a terrorist."