Even if you're an American citizen, the government can detain you indefinitely and torture you, and there's nothing you can do about it.
Cutting through the legalese, that's the gist of the argument lawyers for former Defense Secretary Donald Rumsfeld are arguing in two cases involving the indefinite detention and alleged abuse of two American citizens. One, Jose Padilla, who was convicted on terrorism charges, is well known. The other is a John Doe, a veteran and defense contractor who was detained in Iraq and subject to so-called enhanced interrogation techniques. Both men are suing Rumsfeld and the government over their treatment. The cases aren't entirely the same, but they share enough of the basic legal issues that they're worth talking about together.
Earlier this week, Judge James S. Gwin ruled that Doe's case could go forward. Doe was on a marine base in Iraq when he was detained and was housed with suspected insurgents who were supposedly encouraged to attack him -- sort of like throwing a former prison guard in a maximum-security prison. Here's the description of his treatment from Gwin's ruling:
Doe further alleges that the Camp Cropper prison guards tortured him using “psychologically-disruptive tactics designed to induce compliance.” Among other things, Doe says they exposed him to extreme cold and continuous artificial light, blindfolded and hooded him, woke him by banging on a door or slamming a window whenever they observed Doe trying to sleep, and blasted heavy metal or country music into his cell at what Doe calls “intolerably loud volumes.” One guard repeatedly choked Doe.
Unlike Padilla, Doe was never charged, much less convicted, of anything. Not that it would justify such treatment if he was.
When deciding whether or not these cases are allowed to go forward, judges have to assume that the plaintiff's version of events is "reasonable." So part of what Rumsfeld and his team have to argue is that even if the allegations were true, the law doesn't allow Doe to sue the government for torturing him and detaining him without trial.
Rumsfeld's lawyers argue several points -- but essentially, they say that there's nothing in the law specifically allowing Doe to sue for this particular violation of his constitutional rights. They also say that allowing the suit to proceed would intrude on the executive branch and involve the courts in warmaking policy. They also argue that Rumsfeld is entitled to qualified immunity, which protects government officials from "liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In effect, they're saying it's unreasonable to assume the torture policies Rumsfeld approved might have been unconstitutional.
Doe was in Iraq, but he wasn't on the "battlefield" in any meaningful sense. He was on a Marine base. Not that it matters -- in the Padilla case, Rumsfeld's lawyers have argued that even though he was shifted to military detention from a New York jail, he was an "enemy combatant" and therefore not entitled to legal protection. In a brief filed in the Padilla case yesterday, the ACLU notes that "until this case, no court had suggested that a citizen’s right to be free from torture could be abrogated by a status or classification unilaterally imposed on him by his torturers." Because the cases involve "national security," the courts shouldn't get involved. Try to find that in the Bill of Rights.
The Doe case may seem like it has more potential in the courts because the plaintiff is more sympathetic. But it likely won't matter. These cases are something of an ideological perfect storm for conservative judges, skeptical of civil action, even more skeptical of individuals seeking remedies not clearly outlined by statute, and indifferent to violations of the individual rights of people suspected of terrorism. Either the conservative federal courts will strike them down, or the Obama administration will invoke the state-secrets doctrine to prevent them from going forward.
All of which adds up to one thing: If the government says you're a terrorist, it doesn't matter if you're guilty. It doesn't matter if you're an American citizen, and it doesn't matter if you're on American soil. They can lock you up indefinitely and torture you, and there's not a damn thing you can do about it.