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Padilla’s attorney Jonathan Freiman was incensed. “Incommunicado detention, brutal treatment and death threats do not represent American values and are universally condemned,” he said. “Hopefully no one else will face the horror that Mr. Padilla and his family have faced. The law should guarantee that, and the Ninth Circuit erred in concluding that Mr. Yoo’s actions were not ‘beyond debate.’” Freiman also said he’s deciding whether to pursue further appeals, including a possible U.S. Supreme Court review.
It would be an uphill battle at best. The Ninth Circuit is arguably the most liberal Appeals Court in the nation, and of the three Justices who ruled here two of them, Judges Rebecca R. Pallmeyer and Fisher, were appointed by Democrat president Bill Clinton. The third Judge, N. Randy Smith, was appointed by George W. Bush. Furthermore, this was the second lawsuit filed by Padilla to no avail against a Bush administration official. In January, the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals threw out a lawsuit filed against former Defense Secretary Donald Rumsfeld, similarly noting that private citizens have no right to sue government officials for damages resulting from military detention and interrogation.
Yoo and his lawyer, Miguel Estrada, characterized this latest ruling as a vindication. “The 9th Circuit’s decision confirms that this litigation has been baseless from the outset,” said Yoo, now a law professor at the University of California, Berkeley. “For several years, Padilla and his attorneys have been harassing the government officials he believes to have been responsible for his detention and ultimately conviction as a terrorist. He has now lost before two separate courts of appeals, and will need to find a new hobby for his remaining time in prison.”
That prison time may be extended. Last September, the United States Court of Appeals for the 11th Circuit in Atlanta ruled that Padilla’s current sentence is “substantively unreasonable,” further noting that it was “too great a departure” from federal sentencing guidelines for terrorists. “Padilla poses a heightened risk of future dangerousness due to his Al Qaeda training,” the court said. “He is far more sophisticated than an individual convicted of an ordinary street crime.”
Whether this latest ruling by the Ninth Circuit Court of Appeals represents the death knell in the seemingly endless progressive attempts to find some Bush administration official guilty of “torture” remains to be seen. One thing is certain: even one of the most liberal courts in the nation takes a dim view of the attempt to define torture as such after the fact. “In 2001-03, there was general agreement that torture meant the intentional infliction of severe pain or suffering, whether physical or mental,” Fisher wrote. “The meaning of ‘severe pain or suffering,’ however, was less clear in 2001-03.”
What was clear, especially in the days and months immediately following 9-11, was that the United States faced an existential threat of unknown scope and capability. One in which the initial domestic attack of what might have been a series of domestic attacks inflicted the greatest number of casualties in the nation’s history. And not in a remote location like Pearl Harbor, but in New York City and Washington, D.C. The tallest building in the nation was vaporized, the nerve center of our military capacity was damaged, and if not for the heroism of the passengers on United Airlines Flight 93, perhaps the White House or U.S. Capitol Building may have also been damaged or destroyed.
People who assail government officials tasked with making critical decisions within such critical situations have the luxury of 20/20 hindsight their intended targets did not. It is worth reminding such people that some of those decisions have likely given them that luxury, in that nothing resembling 9-11 has since occurred. When John Yoo made his recommendations he was tasked with finding what then appeared to be a nearly impossible balance between constitutional rights and national survival. His detractors, whether they know it or not, are criticizing him for “erring” on the side of national survival. That says far more about them than it does about a man whose only “crime” was protecting his fellow Americans.
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