Category Archives: Torture

On the Severabilty of the Habeas Corpus Provisions of the Military Commissions Act

Posted on January 4, 2007 by Michael Froomkin

About a month ago, the New Yorker published Killing Habeas Corpus, Jeffrey Toobin's profile of Senator Specter's take on the Military Commissions Act (aka 'The Torture Bill'). It contained a revealing fact about the Senator, a fact whose significance Toobin seemed to have missed. Toobin quotes Specter as saying,

Specter is hoping the courts will restore the rights of the detainees to bring habeas cases. “The bill was severable. It has a severability clause. And I think the courts will invalidate it,” he told me. “They’re not going to give up authority to decide habeas-corpus cases, not a chance.”

Trouble is, the final version of the Military Commissions Act — the one the President signed — doesn't have a severability provision, although some earlier versions did. In theory, that usually means that the bill stands or falls as a whole — if one part of the bill is unconstitutional, the whole bill is void. (There are exceptions, for when the courts find Congress couldn't have intended that.)

So my colleague Steve Vladeck and I wrote the New Yorker a letter.

To the Editor:

In Jeffrey Toobin's marvelous profile of Senator Arlen Specter (“Killing Habeas Corpus,” Dec. 4), the Senator reveals that he labors under a fascinating misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Senator Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial (and, in our view, unconstitutional) habeas provision would have no implications for the continuing force of the rest of the Act.

In fact, as anyone who reads the Act will quickly discover, the statute as signed by the President contains no such provision. As a result, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. As the habeas-stripping clause was the subject of its own vote in the Senate, and the legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting severability.

We draw some comfort from this observation, although not from the apparent failure of one of the bill's coauthors to understand what he was voting for.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor

The New Yorker just published it, in a version that keeps the essential point but edited all the cute out of it:

Toobin's profile reveals that Specter labors under a misapprehension regarding potential judicial review of the Military Commissions Act of 2006. Specter states that the Act contains a severability clause, and that, therefore, excision of the controversial habeas provision would have no implications for the rest of the Act. In fact, the statute contains no such provision, and, if the Supreme Court were to strike down any part of the statute, it would have to consider whether the rest of the Act can survive the loss. Since legislative history shows that the severability clause was removed during the consideration of the bill, it would be very difficult for the Court to find legislative intent supporting it.

A. Michael Froomkin, Professor
Stephen I. Vladeck, Associate Professor
University of Miami School of Law
Coral Gables, Florida

Of course, both Steve and I have complete faith that the Supreme Court could, if it wanted, find some excuse to sever the habeas provisions of the MCA from the rest of the bill — all they'd have to do is change current severability doctrine to fit. Whether it could be done in a principled way, on the other hand…

Posted in The Media, Torture | 14 Comments

Evidence Mounts that US Used Psychological (and Physical?) Torture Against Padilla

Posted on December 4, 2006 by Michael Froomkin

The evidence begins to mount that the US used at least psychological torture against Jose Padilla while holding him in the Navy brig for almost three years.

Padilla's allegations that he was kept in total sensory deprivation begin to seem more credible. Padilla's lawyers allege that he was kept alone in a locked room and fed through a slot to minimize human contact.

Padilla was by all accounts a docile and model inmate. What possible justification other than the desire to break Padilla by isolating him could justify the treatment depicted in this picture, published in the New York Times today:


The NYT explains the photo as follows: Padilla got to go to the dentist once — for a root canal. To prevent this from breaking his sensory deprivation, the Navy worked hard to minimize human contact:

Wordlessly, the guards, pushing into the cell, chained Mr. Padilla’s cuffed hands to a metal belt. Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall to his root canal.

I hope it is not going to be debated that if it is proved that the government did hold Padilla in sensory deprivation conditions for months, much less years, this is not only cruel and unusual, but actual government misconduct.

The effects certainly appear to have been severe,

Dr. Angela Hegarty, director of forensic psychiatry at the Creedmoor Psychiatric Center in Queens, N.Y., who examined Mr. Padilla for a total of 22 hours in June and September, said in an affidavit filed Friday that he “lacks the capacity to assist in his own defense.”

“It is my opinion that as the result of his experiences during his detention and interrogation, Mr. Padilla does not appreciate the nature and consequences of the proceedings against him, is unable to render assistance to counsel, and has impairments in reasoning as the result of a mental illness, i.e., post-traumatic stress disorder, complicated by the neuropsychiatric effects of prolonged isolation,” Dr. Hegarty said in an affidavit for the defense.

…

Dr. Hegarty said Mr. Padilla refuses to review the video recordings of his interrogations, which have been released to his lawyers but remain classified.

He is especially reluctant to discuss what happened in the brig, fearful that he will be returned there some day, Mr. Patel said in his affidavit.

“During questioning, he often exhibits facial tics, unusual eye movements and contortions of his body,” Mr. Patel said. “The contortions are particularly poignant since he is usually manacled and bound by a belly chain when he has meetings with counsel.”

Recall that Padilla is a US citizen, arrested in the USA, and at the relevant times had been charged with no crime.

Posted in Padilla, Torture | 3 Comments

Karpinski Alleges Rumsfeld Personally Ordered Abusive Interrogations

Posted on November 25, 2006 by Michael Froomkin

Former General Karpinsky (demoted to Colonel) has an axe to grind: she was made into the scapegoat for Abu Ghraib. Circumstantial evidence is pretty strong that higher-ups who reported directly to Rumsfeld, notably Gen. Miller, were at least as much to blame, but they escaped all responsibility.

How reliable a witness is Karpinsky? Hard to say — but reliable enough to deserve a hearing. Or two: one in the House and one in the Senate, say.

Rumsfeld okayed abuses says former U.S. general: MADRID (Reuters) – Outgoing Defense Secretary Donald Rumsfeld authorized the mistreatment of detainees at Abu Ghraib prison in Iraq, the prison’s former U.S. commander said in an interview on Saturday.

Former U.S. Army Brigadier General Janis Karpinski told Spain’s El Pais newspaper she had seen a letter apparently signed by Rumsfeld which allowed civilian contractors to use techniques such as sleep deprivation during interrogation.

Karpinski, who ran the prison until early 2004, said she saw a memorandum signed by Rumsfeld detailing the use of harsh interrogation methods.

“The handwritten signature was above his printed name and in the same handwriting in the margin was written: “Make sure this is accomplished”,” she told Saturday’s El Pais.

And, of course, Rumsfeld had better not plan any European travel any time soon.

Posted in Iraq Atrocities, Torture | 7 Comments

Sen. Dodd Wants to Roll Back Aspects of the Torture Bill

Posted on November 17, 2006 by Michael Froomkin

I look forward to reading the actual text of the bill, but from the press release, this sounds like a very good idea. Dodd Introduces Effective Terrorists Prosecution Act:

Washington- Senator Chris Dodd (D-CT), an outspoken opponent of the Military Commission Act of 2006, today introduced legislation which would amend existing law in order to have an effective process for bringing terrorists to justice. This is currently not the case under the Military Commission Act, which will be the subject of endless legal challenges.  As important, the bill would also seek to ensure that U.S. servicemen and women are afforded the maximum protection of a strong international legal framework guaranteed by respect for such provisions as the Geneva Conventions and other international standards, and to restore America’s moral authority as the leader in the world in advancing the rule of law. 

“I take a backseat to no one when it comes to protecting this country from terrorists,” Sen. Dodd said. “But there is a right way to do this and a wrong way to do this. It’s clear the people who perpetrated these horrendous crimes against our country and our people have no moral compass and deserve to be prosecuted to the full extent of the law. But in taking away their legal rights, the rights first codified in our country’s Constitution, we’re taking away our own moral compass, as well.”

The Effective Terrorists Prosecution Act:

  • Restores Habeas Corpus protections to detainees
  • Narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants
  • Bars information gained through coercion from being introduced as evidence in trials
  • Empowers military judges to exclude hearsay evidence they deem to be unreliable
  • Authorizes the US Court of Appeals for the Armed Forces to review decisions by the Military commissions
  • Limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight
  • Provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions

“We in Congress have our own obligation, to work in a bipartisan way to repair the damage that has been done, to protect our international reputation, to preserve our domestic traditions, and to provide a successful mechanism to improve and enhance the tools required by the global war on terror,” Dodd said.

Sadly, no bill can undo the amnesty we gave for tortures past — although the Supreme Court could in theory find the entire bill unconstitutional, or find part of unconstitutional and say that the lack of a severance clause means the entire bill falls. Not that I'm holding my breath.

Posted in Guantanamo, Torture | 5 Comments

US Government Brief Denies Padilla Was Tortured

Posted on November 14, 2006 by Michael Froomkin

Thanks again to David Markus here’s a copy of the Government’s Opposition To Defendant Padilla’s Motion To Dismiss For “Outrageous Government Conduct”.

Short version: We deny everything. And even if it’s all true the remedy is to sue us, not dismiss this case.

Pithy quote:

The government in the strongest terms denies Padilla’s allegations of torture — allegations made without support and without citing a shred of record evidence. For present purposes, however, what matters is that the law plainly does not permit the remedy he seeks: dismissal of the indictment. No further inquiry is required.

Disengenous argument warning:

Padilla’s allegations of torture have no merit whatsoever, but the more basic and insurmountable problem with his motion is a purely legal one. Padilla has not cited a single precedent “absolutely bar[ring]” a federal criminal prosecution because of alleged due process violations committed during a prior military detention. By contrast, courts have firmly and consistently held that an indictment may not be dismissed due to supposed “outrageous government conduct” arising out of the defendant’s treatment while detained. The defendant’s remedy, if any, lies in the civil process or prosecution of the offenders; he is not entitled to a free pass from his own criminal conduct. Moreover, even in the wholly distinct line of cases involving allegedly outrageous prosecutorial misconduct, a defendant still must show that the misconduct substantially prejudiced his defense, and produce up front evidence to support his claims. Padilla has not made such a showing, and his motion should be denied as a matter of law.

Well of course there are no cases involving misconduct during prior military incarceration — that was part of the misconduct! — but no judge is going to have any trouble charging the prosecution with the military’s conduct. An ever so much more so given that Padilla was held in civilian detention before being turned over to the Navy.

That said, the government has meatier arguments based on 11th Circuit precedent…but I’m not sure on a quick reading that they utterly tie the judge’s hands.

Prediction: At least some kind of hearing.

The big issue: Will there be discovery? How much?

(Links to text of Padilla’s motion, to which this is a response, here.)

Posted in Padilla, Torture | 5 Comments

Repeal the Torture Bill

Posted on October 27, 2006 by Michael Froomkin

This is good.

Dodd regrets not filibustering:

Connecticut Senator Chris Dodd says he regrets being talked out of filibustering tough new tribunal legislation signed by President Bush today . The Democrat says he plans to seek new legislation to overturn portions of the bill. Dodd denounced the measure, which civil liberty groups have said endangers many freedoms.

The bill sets up military tribunals to try terror suspects and allows the introduction of evidence obtained through tough interrogation procedures. Dodd says the measure would do little to aid in the hunt for terrorists because information obtained through intimidation is rarely accurate. Dodd says he initially intended to filibuster the bill, but was talked out of it by other Democrats who said there wouldn’t be enough votes to support the filibuster. The senator is campaigning in Iowa as he considers a bid for the Democratic presidential nomination.

The part about Dodd running for President? Less good. But the part about starting a move to repeal the torture bill after the election — that is a great idea. Pity it’s only “portions” though. What does Dodd want to keep?

Of course, even with a perfect (and unlikely) result in the election, there’s not much of a prayer of passing such a bill over a veto, but it’s still worth doing to keep the issue alive.

Posted in Torture | Comments Off on Repeal the Torture Bill