Prison Abuse Scandal May Influence Detainees’ Cases

By Marc Perelman

Published June 11, 2004, issue of June 11, 2004.
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The prison abuse scandal in Iraq could affect Supreme Court rulings in key pending terrorism-related cases, according to human rights advocates and lawyers involved with those cases.

The cases pending before the Supreme Court include one filed on behalf of a dozen foreign detainees in the U.S. military facility in Guantanamo, Cuba, and two involving American citizens — Jose Padilla and Yaser Essam Hamdi — held in military jails in the United States.

The government contends that it can indefinitely detain “enemy combatants” without access to a lawyer or a court and without charges, in the context of an open-ended war on terrorism. Sources claim the administration’s line that it should be trusted to handle so-called “enemy combatants” properly has been weakened by the revelations of abuses by U.S. forces at the Abu Ghraib prison in Iraq, and by allegations that similar incidents occurred in Guantanamo and other U.S. detention centers with the encouragement of the administration.

On the very day on which pictures of the Abu Ghraib abuses were first broadcast on CBS, the Supreme Court heard oral arguments in the two cases involving American citizens. In response to a question by Justice Ruth Bader Ginsburg about the possibility that the government would use “mild torture” to extract information, deputy solicitor general Paul Clement answered that “our executive doesn’t” use such means.

Those claims now appear to be disingenuous. As Donna Newman, primary lawyer for Padilla, put it, justices “don’t like when the government lies to them, not at all.”

On Monday, furthering claims that top-level decisions paved the way for widespread abuse of detainees, the Wall Street Journal reported that a military review of interrogation techniques had advised the Pentagon in 2003 that the president’s authority could trump domestic and international laws banning torture.

“Abu Ghraib undermines the ‘trust us’ government argument even if there is no evidence of abuse in those cases,” said Jennifer Martinez, a law professor at Stanford University who presented the arguments in Padilla’s case. “It shows the dangers of unchecked power and the need for outside scrutiny.”

Padilla, a former Chicago street-gang member who converted to Islam, was detained at Chicago O’Hare airport in May 2002 on suspicions that he was planning to detonate a radioactive “dirty bomb.” A U.S. citizen, he was later designated an enemy combatant by Bush and has been held without charges, and with limited access to his lawyer, at a Navy brig in Charleston, S.C.

Hamdi, another American “enemy combatant” held in similar conditions, was nabbed in Afghanistan in late 2001, fighting with the Taliban. The third case, known as the al Odah case, involves 12 Kuwaitis held in Guantanamo as enemy combatants.

The court is expected to rule on the three cases in late June or early July.

A Justice Department spokesperson declined to comment on the pending cases.

The unfolding abuse scandal is likely to influence justices “on the fence,” according to Deborah Pearlstein, director of the U.S. Law and Security Program at Human Rights First, which filed an amicus brief in the Hamdi and Padilla cases. She pointed to Justice Sandra Day O’Connor, who has expressed concerns about open-ended detentions.

However, Larry Thompson, who was deputy attorney general from May 2001 until last September and who helped craft the government’s antiterrorism policies, said he believed that the impact likely would be limited to the Guantanamo detainee case. That case hinges on the narrow question of whether foreigners detained as enemy combatants in Guantanamo can have access to U.S. courts, whereas the Hamdi and Padilla cases involved more complex issues because of their subjects’ American citizenship.

The government claims that U.S. courts have no jurisdiction in the al Odah case since the plaintiffs are not American citizens or residents, and since Guantanamo is in Cuba — despite the fact that the United States has a 99-year lease on the base.

Kristine Huskey, an attorney representing the 12 Kuwaitis, said she could hardly imagine that the Iraqi prisoner scandal had not laid out in stark terms that “sole executive power is not enough.”

“I think the court is very skeptical of the government argument that we have no jurisdiction at all,” she said.

A lawyer for one of the U.S. enemy combatants said he “definitely” felt that the abuse at Abu Ghraib would have an impact on their cases.

“It’s not easy for the Supreme Court to swallow a line arguing that one should leave it up to the executive when the executive engages in torture,” the lawyer said, on condition of anonymity.

He said the government was feeling less secure in the Padilla case than in the Hamdi case because Padilla was arrested on U.S. soil, whereas Hamdi was detained on the battlefield in Afghanistan. Lawyers for Hamdi have spoken to him on three occasions. While the first meeting was monitored, the two others were not. The conversations remain classified. He has lost all his federal appeals.

Padilla, in contrast, won a legal round when a federal appeals court ordered him released from military custody in January, contending that the president had no authority to declare him an enemy combatant.

After being picked up in Chicago following a flight from Pakistan, Padilla was initially held for a month as a material witness — using a statute that allows the government to hold someone without charge for some time, generally in order to gain his cooperation — before Bush designated him an enemy combatant. He was then sent to the Charleston brig.

Padilla defenders wonder why he should be treated in a worse manner than two self-avowed Al Qaeda operatives whose cases are currently under review by U.S. courts: Zacarias Moussaoui, the French citizen arrested for allegedly planning to participate in the September 11, 2001, attack, and Richard Reid, the British so-called “shoe bomber.”

Last week, the Justice Department disclosed that Padilla was also plotting to bomb apartment buildings in U.S. cities.

Newman — who said she had seen Padilla just twice at the brig in recent months, and that their conversations were monitored — said the new allegations about her client’s terrorist plans were merely a way for the administration to “court public opinion” before the Supreme Court ruling.

“I learned about the allegations in the press,” she complained. “But this case is just an outrage. Everybody deserves a trial.”

Even one of the architects of the government’s judicial strategy acknowledges the need for the court to step in.

“There is a value line that needs to be drawn,” said Thompson, now a visiting professor at Georgia University, pointing to a landmark 1999 decision by the Israeli Supreme Court banning torture as a possible model. “We haven’t done it, and at some point we need to start looking at this.”

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