Would the Last Civil Right in America Please Remember to Close the Door on Its Way Out?

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Q: What do all of the following have in common?

  • Prolonged isolation;
  • Deprivation of light;
  • Exposure to prolonged periods of light and/or darkness;
  • Extreme variations in temperature;
  • Sleep adjustment;
  • Threats of severe physical abuse;
  • Death threats;
  • Administration of psychotropic drugs;
  • Shackling and manacling for hours at a time;
  • Use of "stress" positions;
  • Noxious fumes that caused pain to eyes and nose;
  • Withholding of any mattress, pillow, sheet or blanket;
  • Forced grooming;
  • Suspension of showers;
  • Removal of religious items;
  • Constant surveillance;
  • Incommunicado detention, including denial of all contact with family and legal counsel for a 21-month period;
  • Interference with religious observance; and
  • Denial of medical care for serious and potentially life-threatening ailments, including chest pain and difficulty breathing, as well as for treatment of the chronic, extreme pain caused by being forced to endure stress positions, resulting in severe and continuing mental and physical harm, pain, and profound disruption of the senses and personality.

Any guesses?

Time's up!

A: They're all things that government officials could do to an American citizen and still claim later that they didn't know they were "torturing" that citizen, according to a panel of the U.S. Court of Appeals for the Ninth Circuit. In fact, they could do all those things to the same citizen and still claim it wasn't clear to them at the time whether it was "torture."

Did you guess right? If so, what is wrong with you?

The legal issue was whether John Yoo should be entitled to "qualified immunity" in a case brought by Jose Padilla, a U.S. citizen detained as an "enemy combatant." "Qualified immunity" is a doctrine that bars claims against government officials if, at the time they acted, it was not "sufficiently clear that every reasonable official would have understood that what he or she was doing violated the plaintiff's rights." The idea is to try to preserve some freedom of action for officials who have to act in areas where the law may not always be clear. If it applies, no lawsuit.

So, next question: do you think a "reasonable official" in 2001-03, when John Yoo was in the government, should have understood that doing those things to an American citizen — one who, by the way, had not been convicted of or even charged with a crime — violated that citizen's rights?

If you are asking, well, but did American citizens actually have a right not to be tortured by their government, then again I don't know what's wrong with you but the answer is yes. The court stated, in fact, that "the unconstitutionality of torturing an American citizen was beyond debate in 2001-03."  It also assumed for purposes of argument that the acts listed above actually do amount to "torture" as a matter of fact. But it held that whether they amounted to torture "was not clearly established at that time…." So immunity applies.

There are potentially valid reasons why Yoo himself, who was writing legal memos and wasn't personally, let's say, shoving an IV needle into a citizen's arm or pumping noxious fumes into his face, should not be liable. This isn't one of them. I suppose we could feel relieved that even if it wasn't clear back in those long-ago times of 2001-03 that this was "torture", surely it's clear now, so no official could ever use this excuse in the future. Right? Only, I notice that the Ninth Circuit was not even willing to go ahead and call this "torture," but rather just "assumed for purposes of argument" that it is. Hey, don't go out on a limb, guys.

I can see them dropping just the "forced grooming." Then all bets will be off, probably.

Here's what's really bad about this monumentally awful decision: the only people who wouldn't have thought this was "torture" in 2001-03 were the people doing it or writing memos trying to justify it. Is it a good idea to let officials use "uncertainty" they tried to create in order to argue they should be immune now because things were so unclear at the time?

Answer: no! These questions are not difficult!

Well, it may not be clear to our officials what "torturing an American citizen" means, but at least they passed a law this year saying that any citizen can be held in military custody indefinitely at the whim of the President. So we've still got that going for us.

Good times!