Jose Padilla, John Yoo, and Routine Exoneration for Government Criminals

Jose Padilla, the American citizen kidnapped by the Bush administration and detained and tortured for years without charge or trial, has been trying to sue John Yoo for a while now. Yoo of course was in the Bush administration’s office of legal counsel who crafted legal opinions around what the Bush administration wanted to do to so-called enemy combatants, a notion they basically invented in order to deny detainees their rights.

But this week, a Ninth Circuit Court of Appeals panel rejected Padilla’s case, declaring Yoo immune from such prosecution. Unfortunately, this is the reality of the country we live in: those in elite political and intellectual circles exist in a special bubble where they can commit radical, far-reaching crimes of the highest order and never be subject to prosecution or punishment. The rest of us poor saps are lorded over by this law.

The Bush administration’s torture regime not only involved the infliction of systematic torment and agony for hundreds and hundreds of detainees, many of whom were guilty of nothing, but it is now known that several (perhaps over 100) detainees died or were killed while in custody. All of this was done without the due process mandated by the Constitution. There can be no doubt that these practices were illegal, then and now. The law is very clear that torture is prohibited and very clear on what qualifies as torture. The Supreme Court additionally found in 2006 in Hamdan v. Rumsfeld that the Geneva Conventions does apply to terrorist detainees. Here is a Convention, passed by Congress and signed by Ronald Reagan, against torture, which specificies that “no exceptional circumstances whatsoever . . . may be invoked as a justification of torture.” The question, then, of whether or not the Bush administration committed crimes is also not up for debate.

Notably, even the New York Times finds this decision by the Ninth Circuit “misguided and dangerous” and, as they wrote in an editorial today, the standard of qualified immunity from the law is “an unworkable standard.” The editorial details the legal reasoning for declaring Yoo immune from the law:

In 2009, a Federal District Court in California ruled that Mr. Yoo was not immune from the lawsuit: the violations of rights Mr. Padilla alleged were “clearly established at the time of the conduct” and any “reasonable” federal official would have understood that.

…Until a year ago, the law gave officials so-called qualified immunity to shield them when they performed responsibly. In holding them accountable for exercising power irresponsibly, it required simply that a reasonable person would have known about the right he violated. Last May, however, the Supreme Court ruled that “existing precedent” must put any question about such a right “beyond debate.”

That is an unworkable standard and the Ninth Circuit decision shows why. The Bush administration manufactured both “debates” — about torture and enemy combatants. Any future government can rely on this precedent to pull the same stunt as cover for some other outrage.

It’s the complete breakdown of the rule of law. At virtually every turn, Bush administration officials have been shielded by this system of protecting society’s betters through selective immunity. And while this kind of state lawlessness was in its most extreme practice during the Bush years, it continues to this day. Barack Obama’s refusal to entertain investigations of Bush era crimes is a prime example, but so are his policies of continued indefinite detention in Guantanamo Bay and torture and mistreatment in U.S.-run prisons in Afghanistan lo these many years of Hope & Change.

These realities are bad enough, but now I’ve got to prepare myself for the presidential election season which gushes to gratuitous and effusive degrees with the hero-worship and celebrity-reverence of everybody’s favored tribal figure on Team Red and Team Blue. Talk about salt on the wound.