US defends its harsh treatment of an American citizen

The administration offers its legal rationale for the long detention of Jose Padilla.

from the October 19, 2007 edition

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"Officials are not liable for bad guesses in gray areas," Bowens notes. "They are liable for transgressing bright lines."

Padilla's lawyers believe the lines in his case are clear and clearly established. In their 30-page complaint, they charge that Padilla "suffered gross physical and psychological abuse at the hands of federal officials as part of a scheme of abusive interrogation intended to break down [his] humanity and his will to live."

The complaint says US officials violated Padilla's constitutionally protected rights to consult a lawyer, to gain access to the courts, to practice his religion and associate with family and friends without government interference, and to be free from coercive interrogation, free from cruel and unusual punishment, and free from illegal and arbitrary detention.

Fundamentally at issue in the Padilla case is whether such constitutional guarantees continue to protect a US citizen seized on US soil and held without charge in a US-based military prison once the citizen is designated an enemy combatant.

Bowens says the issue has already been decided by a federal appeals-court panel in Richmond that upheld Padilla's military detention in September 2005. As a result, she says, Padilla's lawyers should be precluded from raising any constitutional claims – even claims related to Padilla's interrogation and isolation.

Some legal analysts say they are alarmed by the sweep of the government's position. "The notion that there is absolutely no limit in how the government treats US citizen detainees strikes me as a disturbing proposition," says Stephen Vladeck, a law professor at American University in Washington, D.C. "Most people would have thought before the Padilla case that the government can't simply do whatever it wants to a US citizen in military custody."

Given the government's reliance on "clearly established" law, the Padilla civil case could present an ironic twist in the long and heated debate over Bush administration tactics in the war on terror. White House and Justice Department officials worked hard in the years since the 9/11 attacks to maximize legal flexibility in dealing with detainees. They sought to clarify the law in a way that would protect interrogators, soldiers, and other US officials from civil suits and war-crimes charges.

Instead of clarification, the efforts triggered debates both within and outside the administration over what the law should be.

Now, legal analysts say, the administration may rely on the lingering uncertainty to help shield US officials from legal liability. "It will make it a lot harder for plaintiffs [like Padilla] to win a lawsuit because there is a much better argument that the relevant laws aren't clearly established," Professor Vladeck says.

"Even though Padilla's rights may have been violated, the real question is whether it was clearly established that what the government was doing to him was illegal," Vladeck says. "One can't help but wonder based on the torture debate whether anything was clearly established."

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