Fearing the “international spectacle” of a trial in which an individual convicted of terrorism would require U.S. government officials to defend their treatment of him during detention, a federal judge in South Carolina on Thursday dismissed all of the claims of torture and abuse during the captivity of a U.S. citizen, Jose Padilla. The judge also ruled that, even if Padilla were allowed to sue, the current and former Pentagon officials he sued would be legally immune to all such charges, since the law governing detention was so uncertain at the time he was held. The 32-page ruling is here [4].
The decision by U.S. District Judge Richard Mark Gergel of Charleston conflicts directly with a ruling nearly two years ago by U.S. District Judge Jeffrey S. White of San Francisco, in a nearly identical case also brought by Padilla. White allowed a lawsuit against former Justice Department official John Yoo to go forward, on the theory that Yoo wrote official memoes justifying “coercive interrogation” of detainees. including Padilla. The White decision is now under review in the Ninth Circuit Court; Judge Gergel’s ruling is expected to be appealed to the Fourth Circuit Court.
With such appeals going forward, Judge Gergel speculated that “one day” a situation might emerge “where these difficult and important issues can be definitively resolved.” (A third case, allowing U.S. citizens to sue over cruel and degrading treatment they allegedly suffered while working for a private security firm in Iraq that was acting as an agent of the U.S. government, is now under review in the Seventh Circuit Court.)
The prospect appears very real that Padilla’s case may end up in the Supreme Court. He has been involved in cases before the Court twice before, but no ruling ever emerged on the legality of his detention.  Just as the Court was about to consider his challenge to detention at a Navy brig in South Carolina, the Bush Administration took him out of military custody, and tried him on terrorism conspiracy charges in civilian court. (He is now serving a 17-year sentence in a federal prison inColorado. His appeal in that case is pending in the Eleventh Circuit Court.)
In Padilla’s two new cases and in the Seventh Circuit case (Vance v. Rumsfeld), the legal maneuver is the same: seeking the right to sue for damages from U.S. officials for allegedly violating individuals’ constitutional rights. Congress has never authorized private lawsuits against federal officials for violating individual rights, so the lawsuits are an attempt to claim such a right to sue under a 1971 Supreme Court decision – Bivens v. Six Unknown Agents. In that decision, the Court said private lawsuits are sometimes allowed when filed directly under the Constitution for official wrongoing.
Not since 1980, however, has the Supreme Court authorized a new legal claim under the Bivens approach. Judge Gergel, in Thursday’s decision against Padilla’s lawsuit, relied heavily upon the Supreme Court’s reluctance to authorize additional such suits.
But the most important rationale the judge used was his concern about how Padilla’s lawsuit against former Defense Secretary Donald Rumsfeld, current Defense Secretary Robert Gates, and other former Pentagon officials would play out in court, if permitted to proceed.
The judge said that Padilla, a former Chicagoan who allegedly got caught up in Al-Qaeda plots to commit violent terrorist acts in the U.S. (including releasing a radioactive bomb in Washington, D.C.), was taken into military custody based upon officials’ consideration of “the most profound and sensitive issues of national security, foreign affairs and military affairs.”
The judge said it would not be fitting for a judge, “sitting comfortably in a federal courthouse nearly nine years after these events,” to judge whether what was done was wise or whether the official belief that Padilla was a terrorist was accurate.
If the case went forward, Judge Gergel said, the Court would become entangled in “issues normally reserved for the Executive Branch.” If a new judicial remedy were created for Padilla’s claims, the judge added, the federal court in pre-trial proceedings would have to oversee “a massive discovery assault on the intelligence agencies,” to get information about secrets. There would be, the judge said, broad demands for access to officials in intelligence and defense agencies, distracting them from their duties.
There would arise serious issues over protecting “state secrets,” the judge said. When the actual trial of Padilla’s charges began, the judge added, it would cause “an international spectacle with Padilla, a convicted terrorist, summonging America’s present and former leaders to a federal courthouse to answer his charges. This massive litigation would have been authorized not by a congressionally established statutory cause of action, but by a court implying an action from the face of the American Constitution.”
The judge’s ruling came in a case filed by Padilla, joined by his mother, Estela Lebron. The case is Lebron, et al., v. Rumsfeld, et al. (District Court docket 07-410).  The American Civil Liberties Union, which filed the case, said it is pondering its next move.
Originally detained by federal officials as a potential witness in a terrorism investigation after the Sept. 11, 2001, terrorist attacks, when he returned to Chicago from abroad, Padilla was soon transferred to the military on President George W. Bush’s direct order. He was then put in a brig in Charleston, where he remained from June 2002 until January 2006, when he was transferred for trial in civilian court (with the Supreme Court’s permission).
During his time in the brig, Padilla’s lawsuit claims, he was subjected to torture, abuse, and violation of his right to practice his religion. For much of that time, he was held without any opportunity to meet with a lawyer or with members of his family.