Dispatches from the Creation Wars

No Rule of Law for the Powerful

Once again a federal court has dismissed a case brought against Bush administration officials for their clear violations of the Constitution, not to mention statutory law and our treaty obligations as well. And as always, the plaintiff lost not on the merits but because of what amounts to de facto total immunity for our most powerful political leaders, no matter how heinous their crimes may be.

The case was brought by Jose Padilla, an American citizen who was arrested on American soil, held in solitary confinement for more than two years without any of the rights guaranteed to him by the constitution — right to an attorney, to a speedy trial, to due process, etc. — and tortured.

Glenn Greenwald explains the facts of the case in more detail:

In March, 2002, American citizen Jose Padilla was arrested in Chicago and publicly accused by then-Attorney-General John Ashcroft of being “The Dirty Bomber.” Shortly thereafter, he was transferred to a military brig in South Carolina, where he was held for almost two years completely incommunicado (charged with no crime and denied all access to the outside world, including even a lawyer) and was brutally tortured, both physically and psychologically. All of this — including the torture — was carried out pursuant to orders from President Bush, Secretary Rumsfeld and other high-ranking officials. Just as the Supreme Court was about to hear Padilla’s plea to be charged or released — and thus finally decide if the President has the power to imprison American citizens on U.S. soil with no charges of any kind — the Government indicted him in a federal court on charges far less serious than Ashcroft had touted years earlier, causing the Supreme Court to dismiss Padilla’s arguments as “moot”; Padilla was then convicted and sentenced to 17 years in prison.

Padilla — like so many other War on Terror detainees — has spent years in American courts trying unsuccessfully to hold accountable the high-level government officials responsible for his abuse and lawless imprisonment (which occurred for years prior to his indictment). Not only has Padilla (and all other detainees) failed to obtain redress for what was done to them, but worse, they have been entirely denied even the right to have their cases heard in court. That’s because the U.S. Government has invented — and federal courts have dutifully accepted — a whole slew of legal doctrines which have only one purpose: to insulate the country’s most powerful political officials from legal accountability even when they commit the most egregious crimes, such as imprisoning incommunicado and torturing an American citizen arrested and detained on U.S. soil.

And responds:

Yesterday, in South Carolina, an Obama-appointed federal judge dismissed a lawsuit brought by Padilla against former Bush officials Donald Rumsfeld, John Ashcroft, Paul Wolfowitz and others. That suit alleges that those officials knowingly violated Padilla’s Constitutional rights by ordering his due-process-free detention and torture. In dismissing Padilla’s lawsuit, the court’s opinion relied on the same now-depressingly-familiar weapons routinely used by our political class to immunize itself from judicial scrutiny: national security would be undermined by allowing Padilla to sue; “government officials could be distracted from their vital duties to attend depositions or respond to other discovery requests”; “a trial on the merits would be an international spectacle with Padilla, a convicted terrorist, summoning America’s present and former leaders to a federal courthouse to answer his charges”; the litigation would risk disclosure of vital state secrets; and “discovery procedures could be used by our enemies to obtain valuable intelligence.”

In other words, our political officials are Too Important, and engaged in far Too Weighty Matters in Keeping Us Safe, to subject them to the annoyance of the rule of law. It’s much more important to allow them to Fight The Terrorists without restraints than to bother them with claims that they broke the law and violated the rights guaranteed by the U.S. Constitution. That’s the mentality that has resulted in full-scale immunity for both political and now private-sector elites in a whole slew of lawbreaking scandals — from Obama’s refusal to investigate Bush-era crimes or high-level Wall Street criminality to retroactive immunity for lawbreaking telecoms and legal protection for defrauding mortgage banks. With very few exceptions — yesterday’s ruling, for instance, brushed aside a contrary decision from a Bush-43-appointed federal judge in California last year that refused to dismiss Padilla’s lawsuit against John Yoo for having authorized his torture (that decision is on appeal) — Executive Branch officials and the federal judiciary have conspired to ensure that the former are shielded from judicial scrutiny even for the most blatant and horrifying crimes.

There are legalistic questions involved in cases such as the one brought by Padilla — i.e., whether courts should allow monetary damages to be sought against government officials for Constitutional violations in the absence of a Congressional statute (a “Bivens” claim) and whether such officials should enjoy “qualified immunity” for their illegal acts where the illegality is unclear (as Rumsfeld absurdly alleged the torture of Padilla was) — but one key fact is not complex. Not a single War on Terror detainee has been accorded any redress in American courts for the severe abuses to which they were subjected (including innocent people being detained for years, rendered and even tortured), and worse, no detainee has been allowed by courts even to have their claims heard. After the U.S. Government implemented a worldwide regime of torture, lawless detention, and other abuses, the doors of the American justice system have been slammed shut in the face of any and all victims seeking to have their rights vindicated or even their claims heard. If an American citizen can’t even sue political officials who lawlessly imprison and torture him in his own country — if political leaders are vested with immunity from a claim of this type — what rational person can argue that the rule of law or the Constitution binds our government officials?

I certainly can’t. The rule of law is dead for all practical purposes, as are the checks and balances built into the Constitution to prevent the executive from exceeding his powers and violating the rights that were intended to be unalienable. The president can now do anything he wants, with no enforceable limits on his authority to violate the constitution at will.