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You are here: Home / Politics / An Unexamined Scandal / “Donald Rumsfeld is above the law and Jose Padilla is beneath it”

“Donald Rumsfeld is above the law and Jose Padilla is beneath it”

by Anne Laurie|  February 18, 201112:53 am| 62 Comments

This post is in: An Unexamined Scandal, Enhanced Protest Techniques, Torture, War on Terror aka GSAVE®, Republican Crime Syndicate - aka the Bush Admin.

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Per the Washington Post, “Judge throws out Padilla suit over alleged torture“:

CHARLESTON, S.C. — A federal judge on Thursday threw out a lawsuit brought by a man convicted of plotting terrorism and who alleged he was tortured at a Navy brig in South Carolina, saying a trial would create “an international spectacle.”
__
U.S. District Judge Richard Gergel ruled Jose Padilla, arrested as an enemy combatant, had no right to sue for constitutional violations and that the defendants in the case enjoyed qualified immunity.
__
Padilla claimed he was illegally detained as an enemy combatant and then held in a brig near Charleston where he was tortured. His lawsuit named government and brig officials, including Defense Secretary Robert Gates and former Defense Secretary Donald Rumsfeld.
__
Padilla alleged he was tortured by being kept in darkness and isolation, deprived of sleep and religious materials, and kept from family and attorneys
[…] __
“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,” [Gergel] wrote.
__
Wizner [litigation director for the American Civil Liberties Union Foundation] said the court has ruled “that Donald Rumsfeld is above the law and Jose Padilla is beneath it.”
__
But he warned “if the law does not protect Jose Padilla, it protects none of us, and the executive branch can simply label citizens enemies of the state and strip them of all rights — including the absolute right not to be tortured.”

I can remember when the American judicial system at least pretended that the shanda fur die goyim, the source of disgrace in front of our global neighbors, was grabbing and torturing people on suspicion of thought crimes… and then not even having the basic decency to admit that those people (even the ones guilty of, at a minimum, bad thoughts and violent intentions) might be entitled to a public airing of their grievances.

But, hey, Donald Rumsfeld’s memoirs are getting distinctly unfriendly reviews, which some of the Media Village Idiots would no doubt argue means he’s suffered just as badly as some off-white slum kid condemned to a Supermax facility.

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Reader Interactions

62Comments

  1. 1.

    Little Boots

    February 18, 2011 at 12:55 am

    fresh thread? fresh political thread? okay, so um, come to Wisconsin, Everybody!!!!

  2. 2.

    Little Boots

    February 18, 2011 at 12:59 am

    We really are losing it, as a nation. What we did to Padilla would embarrass the Spanish Inquisition.

  3. 3.

    arguingwithsignposts

    February 18, 2011 at 12:59 am

    the known unknowns will be on his tombstone. This rehab stuff just sucks.

  4. 4.

    arguingwithsignposts

    February 18, 2011 at 1:00 am

    @Little Boots: except we didn’t use the fluffy pillows.

  5. 5.

    El Cruzado

    February 18, 2011 at 1:01 am

    So exactly what law did the judge base his decision on?

    “This might be embarrassing” isn’t, AFAIK, any law that’s written in the books.

  6. 6.

    Yutsano

    February 18, 2011 at 1:01 am

    But, hey, Donald Rumsfeld’s memoirs are getting distinctly unfriendly reviews, which some of the Media Village Idiots would no doubt argue means he’s suffered just as badly as some off-white slum kid condemned to a Supermax facility.

    Schadenfreude aside, just as a point of order, Padilla is a brown. You think some white judge is gonna cause an uproar over someone with a Messican sounding name?

    (I’m avoiding calling him Mexican because he could be Puerto Rican. Or another nationality from down Latin America way. But odds are from NYC with a gang background he’s Rican.)

    @El Cruzado: Which is why I want to know if he dismissed it with prejudice. If so the legal basis given there is very shaky. Burnsy will hopefully fill in some details here if he’s seen the decision.

  7. 7.

    Little Boots

    February 18, 2011 at 1:02 am

    @arguingwithsignposts:

    or even the comfy chair. God, we suck!

  8. 8.

    harlana

    February 18, 2011 at 1:02 am

    And we are surprised? Why?

    (see 2003)

  9. 9.

    hamletta

    February 18, 2011 at 1:03 am

    @Little Boots: Dude, this ain’t Eschaton.

  10. 10.

    arguingwithsignposts

    February 18, 2011 at 1:03 am

    @Little Boots: No! not the comfy chair!

  11. 11.

    Little Boots

    February 18, 2011 at 1:06 am

    @hamletta:

    I know. You’re all awake. That’s so weird.

  12. 12.

    hamletta

    February 18, 2011 at 1:07 am

    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,” [Gergel] wrote.

    Hasn’t Padilla been reduced to the sentience of cabbage? How would he summon anything at this point?

  13. 13.

    Pooh

    February 18, 2011 at 1:07 am

    I’d like to read the opinion before going completely apeshit on this. I’ve often found that reporting on legal issues gets important stuff wrong in terms of emphasis.

  14. 14.

    cs

    February 18, 2011 at 1:07 am

    @Little Boots:

    Actually the Spanish Inquisition would think we were complete wimps. “Sleep deprivation? You didn’t even use the rack? Not even once? My God people, what were you thinking? You’ll never get them to confess to being heretics that way.”

  15. 15.

    arguingwithsignposts

    February 18, 2011 at 1:07 am

    @Little Boots: if you say M_C’s name three times, she’ll show up to call you a cudlip. just sayin’

  16. 16.

    Mike in NC

    February 18, 2011 at 1:08 am

    Donald Rumsfeld’s memoirs are getting distinctly unfriendly reviews, which some of the Media Village Idiots would no doubt argue means he’s suffered just as badly as some off-white slum kid condemned to a Supermax facility.

    Unfriendly reviews? For Rummy, the Beltway darling?

    There’s so much love for Rummy at Amazon.com.

    I recall active duty buddies saying how they’d be uninvited from Pentagon meetings if they dared stray from the gospel he put out.

  17. 17.

    Little Boots

    February 18, 2011 at 1:09 am

    and, hamletta, you’re lucky I didn’t go all Frist! on this site’s ass.

  18. 18.

    arguingwithsignposts

    February 18, 2011 at 1:13 am

    so is it too soon to punch Rummy in the neck yet? Moore Award. I’m up for it.

  19. 19.

    Little Boots

    February 18, 2011 at 1:15 am

    @arguingwithsignposts:

    Yes. Punching him in the dick, however, is always in season.

  20. 20.

    harlana

    February 18, 2011 at 1:15 am

    Look, we are not supposed to care about “War Criminals”, we are supposed to “move forward” and not let things like this “divide” us. So everyone, just sit the fuck down, shut the fuck up, and let’s move forward into the blinding light of our American future, k?

  21. 21.

    arguingwithsignposts

    February 18, 2011 at 1:17 am

    @harlana: i can haz foam fingers naow?

  22. 22.

    Villago Delenda Est

    February 18, 2011 at 1:18 am

    @Mike in NC:

    von Rumsfailed fired professionals who told him outright that we didn’t have the troop levels needed to secure the occupation after the deserting coward’s little exercise in remaking Patton with real troops in Iraq.

    Ask General Shinseki about what doing your duty will do to your career.

  23. 23.

    Little Boots

    February 18, 2011 at 1:20 am

    @Villago Delenda Est:

    We will pay for that war for the next 50 years, while pretending not to. It is amazing, or amazing for anyone who is not paying attention.

  24. 24.

    arguingwithsignposts

    February 18, 2011 at 1:20 am

    @Villago Delenda Est: von Rumsfailed
    like it. stealing.

    ETA: insomnia is a bitch.

  25. 25.

    burnspbesq

    February 18, 2011 at 1:23 am

    Anyone found a link to the order? Not on ACLU, not on the district court’s public website, and I don’t have a current password for my PACER account.

  26. 26.

    Little Boots

    February 18, 2011 at 1:23 am

    wake up, people. I’m counting on you. Do not be Eschaton! Do not go there! Hamletta, don’t make me come down wherever that is!

  27. 27.

    Pooh

    February 18, 2011 at 1:27 am

    @burnspbesq: this.

    I’d hate to have been the judge in this case TBH, my strong intuition is that the law leans strongly one way, while the facts present a great case for an equitable exception. Basically, I’m guessing that the decision is probably correct purely on the legal merits, the effects of the Bush DOJ basically running out the clock on him set a dangerous precedent.

  28. 28.

    asiangrrlMN

    February 18, 2011 at 1:33 am

    “Good thing it wasn’t the Church of England.”

    Sigh. I have no snark for this. I’m going back to my conversion to a conservative.

  29. 29.

    Yutsano

    February 18, 2011 at 1:33 am

    @burnspbesq: Did some sleuthing, couldn’t find it yet. It’s possible it may not be posted online yet but could be on a legal search service by now.

  30. 30.

    Villago Delenda Est

    February 18, 2011 at 1:34 am

    The deserting coward, porkchop, and von Rumsfailed wanted to do Iraq “on the cheap”. So on the cheap that the whole thing was put “off budget”. But in doing so, they made it infinitely more expensive, in blood and treasure, all because they refused to listen to guys like Shinseki who told them exactly what would happen if they did it their way.

    But, after all, a four fucking star general is just another DFH to be mocked and ignored.

  31. 31.

    arguingwithsignposts

    February 18, 2011 at 1:35 am

    sigh. my snark well has run dry. i blame it on global warming.

  32. 32.

    Little Boots

    February 18, 2011 at 1:37 am

    @arguingwithsignposts:

    Never surrender. Never let your snark die. this is the internet, goddammit!

  33. 33.

    Morbo

    February 18, 2011 at 1:37 am

    Personally I think The Boondocks provided the definitive commentary on Rumsfeld in the form of Samuel L. Jackson quoting his ridiculous press conferences in the context of being a white wannabe gangbanger.

  34. 34.

    burnspbesq

    February 18, 2011 at 1:38 am

    @Pooh:

    I’m still hung up on a basic Civ Pro issue: how does a court grant a 12(b)(6) motion when the defendant’s only have qualified immunity. That seems to me to be nigh on impossible, because a 12(b)(6) motion is only supposed to be granted when there is no set of facts that could be proven that would entitle plaintiff to relief, and qualified-immunity determinations are notoriously fact-specific.

    I’m missing something fundamental here.

  35. 35.

    JasonF

    February 18, 2011 at 1:42 am

    I put a copy of the opinion here.

    I read it, but not very carefully. On a quick read, it seems like a relatively straightforward application of Bivens. Bivens is a case that talks about when you can sue a government employee personally for his actions taken in the performance of his job. The short answer is “very rarely,” and the court in Padilla is basically saying “this is not one of those very rare cases.”

  36. 36.

    arguingwithsignposts

    February 18, 2011 at 1:43 am

    @burnspbesq:

    I’m missing something fundamental here.

    yes, and it’s called law is for suckers. we play the game how we want to.

  37. 37.

    Little Boots

    February 18, 2011 at 1:44 am

    @arguingwithsignposts:

    see? better.

  38. 38.

    Steeplejack

    February 18, 2011 at 1:45 am

    __

    “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,” [Gergel] wrote.

    And what, exactly, is wrong with that?

  39. 39.

    Yutsano

    February 18, 2011 at 1:45 am

    @burnspbesq: I’m looking at this, which is surprisingly easy to read, and I’ll go look at what Cornell says about qualified immunity here to in order to better understand what your confusion is. Dammit you’re making me do homework. :)

  40. 40.

    arguingwithsignposts

    February 18, 2011 at 1:51 am

    @Little Boots: surprisingly easy.

  41. 41.

    Silver

    February 18, 2011 at 1:55 am

    @Steeplejack: There are no American war criminals.

    Jesus wrote that in the final draft of the constitution at the Boston Tea Party during the war of 1812.

  42. 42.

    Steeplejack

    February 18, 2011 at 1:57 am

    In my recurring dream, Rumsfeld is “allowed” to stand during the entire proceedings of his war-crimes trial.

    When Donald Rumsfeld heard about plans to force detainees at Guantánamo Bay to stand for hours on end, in order to soften them up and make them talk to U.S. interrogators, he made a joke about it. “I stand for 8-10 hours a day,” the then-defense secretary wrote on Dec. 2, 2002, at the bottom of a memo authorizing military officials to use extreme techniques against prisoners. “Why is standing limited to 4 hours?”

    Salon, April 22, 2009

  43. 43.

    Steeplejack

    February 18, 2011 at 1:59 am

    @Silver:

    Touché. I momentarily forgot that.

  44. 44.

    TenguPhule

    February 18, 2011 at 2:00 am

    When justice is outlawed, only outlaws will have justice.

  45. 45.

    TenguPhule

    February 18, 2011 at 2:03 am

    Someday I dream of sitting in the jury of the Iraqi national who breaks into Rumsfield’s house and spends half an hour cutting his head off, just to let him walk.

    Its those little things that keep me able to pretend sanity these days.

  46. 46.

    AkaDad

    February 18, 2011 at 2:18 am

    The judge is correct that it would create an international spectacle and If we put him on trial America will look bad and if we look bad, people will hate us and want to attack us. This judge is saving American lives. How can anyone be against that?

  47. 47.

    scav

    February 18, 2011 at 2:55 am

    @AkaDad: Because some of us think the principles of law and those that supposedly undergird this nation actually mean something and are willing to die upholding them. It’s not a god-damn beauty contest where we expect people to lie and we know the boobs are false.

  48. 48.

    Amir_Khalid

    February 18, 2011 at 3:27 am

    @scav: To which I add: nothing builds international respect for American principles like American respect for American principles.

  49. 49.

    Pooh

    February 18, 2011 at 3:31 am

    @asiangrrlMN: Cake or Death?

  50. 50.

    AkaDad

    February 18, 2011 at 3:47 am

    @AkaDad:

    Real Americans understand that the law and other associated principles can be tossed aside when it suits our interests.

    Edit: That was a reply to scav not myself.

  51. 51.

    Pooh

    February 18, 2011 at 3:52 am

    @JasonF:

    Having read it, the Bivens section seems solid. It’s crappy law from a prudential standpoint, but I think probably by necessity when considering the institutional limitations of the courts in a “how many legions has the Pope” sort of way.

    That said, the qualified immunity section, especially WRT to the torture issue is pure chickenshit, but at least the Court specifically notes he’s being chickenshit on the issue.

  52. 52.

    Parallel 5ths (Jewish Steel)

    February 18, 2011 at 3:58 am

    @AkaDad: Your irrationally hostile brand of quasi-trollery, or really just trollery, is good but you lay it on too thick when you proclaim what “Real Americans understand…”

    A little too on the nose, in other words. Dial it back a few clicks, and you’re almost there.

  53. 53.

    Pooh

    February 18, 2011 at 4:00 am

    I should add that I’m not sure the court is WRONG as a matter of law in the qualified immunity section, it’s just that the analysis (or really lack thereof) is pretty shoddy in that it doesn’t even address the bleedingly obvious issue that the larger the scope of malfeasance, the less likely there is to be lack of qualified immunity in this kind of case.

  54. 54.

    burnspbesq

    February 18, 2011 at 4:30 am

    As Pooh predicted and JasonF observed, the decision seems well grounded in the post-1980 Bivens case law. The only hole I can see in the analysis is that in the qualified immunity discussion, no mention is made of the Convention Against Torture as a potential source of “clearly established statutory or Constitutional rights of which a reasonable person would have known.”

    Bottom line: law and justice don’t always converge. And John Yoo should be disbarred, and Jay Bybee impeached.

  55. 55.

    Pooh

    February 18, 2011 at 4:32 am

    Yeah, that’s a big part of the shoddy analysis I mentioned above.

  56. 56.

    NobodySpecial

    February 18, 2011 at 4:48 am

    @burnspbesq:

    Bottom line: law and justice don’t always converge. And John Yoo should be disbarred, and Jay Bybee impeached.

    Don’t be silly, they’re just advocates. Plus, you know, look forward, etc.

  57. 57.

    Egypt Steve

    February 18, 2011 at 8:28 am

    Padilla should have claimed that Rumsfeld had given him a blow job. Then, according to the Paula Jones precedent, his right to subpoena “America’s present and former leaders” to testify would have been beyond question.

  58. 58.

    Evinfuilt

    February 18, 2011 at 10:37 am

    @Silver: Don’t give Bachman any ideas.

  59. 59.

    honus

    February 18, 2011 at 11:01 am

    wasn’t it just a few years ago that nobody was above the law, not even the president, and thus a huge spectacle resulted when he was questioned about his consensual sexual relations with a young woman? But we can’t ask Donald Rumsfeld about torture because it would be unseemly.

  60. 60.

    burnspbesq

    February 18, 2011 at 12:44 pm

    @4jkb4ia:

    Actually, Yoo is still potentially on the hook. He was sued separately by Padilla in the Northern District of California. The District Court denied in part Yoo’s 12(b)(6) motion. The case is on appeal to the Ninth Circuit.

    The District Court opinion is here.

  61. 61.

    Citizen Alan

    February 18, 2011 at 2:56 pm

    A whole blog post and 61 comments so far, and no one has felt the need to point out that Richard Gergel is an Obama appointee who was sworn in just last August. Funny that.

Comments are closed.

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    February 22, 2011 at 1:55 am

    […] “Donald Rumsfeld is above the law and Jose Padilla is beneath it” (balloon-juice.com) […]

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