Torture Jurisprudence

I can't help expanding on Karl's excellent post here. I'm teaching John Yoo's legal manifesto The Powers of War and Peace to my college students this semester. For those still unaware, Mr. Yoo is the onetime justice department attorney who, more than any other, has the dubious distinction of constructing the legal doctrine Bush has been using to justify his "War on Terror" policies in the courtroom. Yoo's doctrine is an updated and expanded version of the Unitary Executive Theory, which posits a president who controls the executive branch with very little oversight or limiting influence from the legislature and judiciary. In virtually every major war on terror case Bush, implementing this theory, has argued that the Commander-in-Chief Clause of Art. II, Sect. II of the Constitution gives the president almost unlimited power to prosecute wars, and every contingency relating to wars, however remote, as he sees fit. The constitutionality of the executive branch's war-related policies and conduct, the theory goes, is to be determined almost exclusively by the president himself, congress and the courts being factually unqualified and constitutionally forbidden to meddle in such matters. At its core this theory, as Yoo formulates it, removes the fundamental Madisonian notion of seperation of powers from war-related issues. One of the real-life consequences of Bush's adoption of this theory--which gives him supreme interpretive power regarding the constitutionality of his own war policies--is that Bush has consistently given himself license to use torture as a preferred method of gathering intelligence. He does this by doing to those he deems "unlawful enemy combatants" what the Supreme Court did in Dred Scott v. Sandford to black Americans when it deemed them non-persons under the Constitution. By denominating someone an unlawful enemy combatant Bush divests them of constitutional personhood. Thereafter anything, no matter how outrageous or cruel, can be done to them. Just as the Court in Dred Scott claimed that "the black man has no rights a white man must respect," so anyone the president chooses to all an unlawful enemy combatant has no rights a U.S. interrogator must respect. The danger of Mr. Yoo's quasi-monarchical interpretation of the Commander-in-Chief clause is thrown into high relief in the case of U.S. v. Padilla. Padilla involves a U.S. citizen arrested while unarmed on U.S. soil as a "material witness" during the investigation into the 9-11 attacks. Months elapsed without Mr. Padilla being given any of the due process rights normally guaranteed citizen-arrestees under the Constitution. He wasn't charged with any crime, wasn't Mirandized, had no access to counsel and so on. Outrage began to develop among the more vigilant civil libertarian groups. More popular news outlets began demonstrating some concern. Realizing that detaining a U.S. citizen interminably as a "material witness" would be problematic, the Bush administration sought to better insulate itself against court challenges by changing Mr. Padilla's official status to that of "unlawful enemy combatant." This pushed him far deeper under the umbrella of the president's supposed Art. II semi-omnipotence. Mr. Padilla has now been in custody 4 1/2 years. Because the executive branch, in its sole and unchecked judgment, has deemed him the equivilant of a constitutional non-person, he has been subjected to a veritable sadist's menu of rigorously refined, meticulously implemented torture techniques. According to the reply brief his lawyer's filed with U.S. District Court for Southern Florida, which often speaks of his treatment in polite euphemisms, these techniques include "isolation; sleep and sensory deprivation; hoodings; stress positions; exposure to noxious fumes; exposure to temperature extremes; threats of imminent execution; assaults; the forced administration of mind-altering substances; denial of religious practices; manipulation of diet; and other forms of mistreatment." Affidavits from multiple experts stating that, as a result of his years of torture, he's become mentally incompetent and cannot assist in his own legal defense, have been attached to Mr. Padilla's brief. In its answer to Mr. Padilla's complaint the government neither confirms nor denies doing these things. To affirm them would be to gratuitously assist opposing counsel; to deny them would be to deceive the court. It instead asserts that Mr. Padilla can cite no precedent stating that the alleged outrageous governmental conduct alone entitles him to a dismissal of the indictment the government eventually pursued and got against him. Mr. Padilla's answer to this claim is poignant: "Repeatedly in its response, the government bemoans that Mr. Padilla has failed to cite any precedential authority for his application. There is a logical explanation for this failing: the government's brutal treatment of Mr. Padilla is without precedent. Fortunately, our government usually observes the rule of law. Lamentably, it did not do so in Mr. Padilla's case, and most certainly brutalized, tortured and coerced him. Mr. Padilla's motion to dismiss his indictment owing to such treatment is alive and well..." Mr. Padilla is a U.S. citizen arrested in a U.S. city by U.S. agents and taken to a U.S. prison on U.S. soil without any of the protections of the U.S. Constitution. All because the U.S president willed it so. If a president can do this to one of our fellow citizens, what can't he do? There's a chance that, in the end, the Supreme Court, which ever since Maubury v. Madison has had ultimate interpretive power over the Constitution, will reject the Unitary Executive Theory full stop. Or at least substantially chasten the executive back into something like the co-equal branch it was designed to be. Courts have been reluctant to accept this theory, by and large, since Bush's war on terror began. It's entirely possible that the executive branch recognized the unlikelihood of winning with this theory from the beginning but had determined to fight the war as it saw fit and, when pressed to justify its pre-determined actions before the judicial branch, could do no better. Regardless of how the Supreme Court eventually deals with this theory, it should give us all pause that this president, to the extent he understands what his people are arguing, actually believes in it, has operated under it, and continues to have the audacity to argue for it in open court. Were there no courts in his way...