An important question confronting courts in the United States is whether individuals subjected to torture and other abuse in the "war on terror" can obtain a judicial remedy for their mistreatment. A recent decision by the US Court of Appeals for the Fourth Circuit in Richmond, Virginia, concludes that they may not.The verdict will not be the last word on the subject, as it can yet be appealed to the Supreme Court. (Gallo/Getty)

The decision, which throws out the civil suit of former enemy combatant Jose Padilla, is troubling, both in its result and potential sweep. It not only threatens core freedoms protected by the constitution, but also undermines the principle that government officials should be held accountable for their illegal conduct.

Padilla was the victim of one of the most extraordinary uses of military detention power after the 9/11 attacks. In May 2002, Padilla was arrested by the FBI at Chicago's O'Hare International Airport and detained as a material witness in connection with the government's investigation into the attacks. The government suspected that Padilla was involved in a plot to explode a radioactive "dirty bomb" in the United States. 

But rather than charge Padilla with a crime under various anti-terrorism statutes, President Bush declared him an "enemy combatant" and transferred Padilla to a navy brig in South Carolina, where he was imprisoned without access to a lawyer, a court, or his family for nearly two years. While at the brig, Padilla was held in total isolation for long periods of time, forced to endure extreme sensory deprivation, subjected to painful stress positions, and threatened with death.

In November 2005, with the Supreme Court poised to decide whether to hear Padilla's legal challenge, the Bush administration ended his military detention, indicting Padilla on criminal charges and subsequently transferring him to a federal prison. The transfer rendered Padilla's challenge to his continued military detention moot, and the Supreme Court declined to hear his case. The question remained, however, whether Padilla could seek reparations for his brutal treatment during his years of military confinement at the brig.

Seeking reparations

Padilla accordingly commenced suit against former Defence Secretary Donald Rumsfeld and other senior officials responsible for his detention and treatment as an enemy combatant. The complaint, which sought only nominal damages, was not about money, but a principle: In the United States, no person is above the law and even a state of war is not a "blank cheque" when it comes to the rights of US citizens.

In dismissing Padilla's suit at the pleading stage, before the defendants were even required to answer the complaint, the appeals court necessarily assumed the truth of Padilla's allegations. The dismissal instead rested on the more sweeping proposition that Padilla had no right to pursue any claims in federal court, no matter how brutally he was treated.  

The dispute in Padilla's case centred mainly on interpretation of a 1971 case, Bivens v Six Unknown Named Agents, in which the Supreme Court had established that individuals could sue federal officials for violations of their constitutional rights. (Bivens itself involved a warrantless search and arrest in violation of the Fourth Amendment.)

"The court's decision effectively creates a national security exception to the general principle that government officials may be held accountable for the torture and prolonged arbitrary detention of US citizens."

There is no question that Padilla's prolonged incommunicado detention and gross mistreatment would have qualified for relief under Bivens, had it occurred as part of a "normal" law enforcement investigation - or had Padilla been a "regular" federal prisoner. The government argued, however, that because Padilla was detained by the military in the name of national security, his suit presented "special factors counselling hesitation" by the courts, thus placing it within an exception to Bivens liability. In this sensitive area, they argued, judges should not allow litigation to proceed - no matter how egregious the constitutional violation - unless Congress expressly provides for a remedy (which Congress has not). 

The appeals court accepted the government's argument, concluding that allowing Padilla's suit to proceed would infringe on the prerogatives of the political branches, notwithstanding that Congress had clearly and categorically prohibited torture and other forms of mistreatment. The appeals court also found that judges lacked competence to adjudicate Padilla's claims, concluding that litigation would enmesh them in assessing government decisions about the use of interrogation methods and risk disclosure of classified information and other sensitive intelligence.

Additionally, the court dismissed Padilla's claims under the Religious Freedom Restoration Act (RFRA). Padilla, a practicing Muslim, maintained that the government had severely impeded his practice of Islam, including by denying him access to a Quran, to facilitate interrogations and deliberately confusing him about prayer times and the direction of Mecca. While RFRA plainly covered these violations of religious freedom, the court questioned whether that statute's protections applied to enemy combatants in military detention. In any event, the court said, the defendants were immune from suit because RFRA's applicability to enemy combatants was not clearly established at the time.

A national security exception

The court's decision effectively creates a national security exception to the general principle that government officials may be held accountable for the torture and prolonged arbitrary detention of US citizens. That exception is premised on a limited role for courts in enforcing constitutional protections and an aversion to holding officials liable even for the most lawless conduct in matters involving terrorism. The exception, moreover, has no limit: Under the court's reasoning, the result would have been the same if the government had waterboarded Padilla - or cut off the tips of his fingers.

Perhaps, the most cruel irony is that Padilla's military detention was made possible only because the government invoked labels such as "national security" and "enemy combatant" to circumvent established rules - above all, the requirement that individuals arrested in the United States be promptly charged with a crime and not thrown in a military stockade. Extracting an individual from the regular criminal justice system thus became the predicate for immunising government officials for any and all abuse that followed. Padilla's case demonstrates how emergency powers, even if falsely asserted and illegally invoked, can swallow the rule of law. 

Padilla, to be sure, is not the most sympathetic plaintiff. Following his transfer to federal court to face charges, he was convicted of providing material support to terrorism and received a lengthy prison term. (Though it bears noting that the conviction was not based on the "dirty bomb" allegations, but on vague assertions of peripheral involvement in "jihad" during the 1990s.)

The Fourth Circuit's decision, however, did not turn on the fact that Padilla had been convicted of a crime. It applies equally to any US citizen placed in military detention, even if that person is never charged with a crime and is innocent of all wrongdoing.

The Fourth Circuit's decision will not be the last word on the subject. Padilla can appeal the decision to the full appeals court or to the Supreme Court, and his separate suit against John Yoo, an architect of Bush-era torture policies, is still pending before a federal appeals court in California. In addition, other suits by US-citizen torture victims are pending in other courts.

The Fourth Circuit's decision, nevertheless, represents a significant setback for the rule of law. It demonstrates, above all, the corrosive effects of torture, which warps legal institutions and values, ultimately co-opting courts themselves, as they become instruments of impunity.

Jonathan Hafetz, a professor at Seton Hall Law School, is the author of Habeas Corpus after 9/11: Confronting America's New Global Detention System.

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