The Right to Torture Americans

by Jacob G. Hornberger

Conservatives are protesting a federal judge’s ruling that torture victim Jose Padilla’s civil lawsuit against former Justice Department attorney John Yoo be permitted to continue. The conservatives feel that Yoo, who authored some of the infamous torture memos for the Bush White House, should be immune from lawsuits from Americans who were tortured as a natural consequence of such memos.

Let’s sum up what conservatives (and neo-conservatives) are saying about the America in which we now live. They’re saying that the federal government now wields the power to torture Americans and that Americans had better get used to this new way of life. Any American who is tortured should forget about ever suing any federal official who either does the torturing or who authorizes or facilitates it.

At the same time, conservatives say that federal torturers should be immune from criminal liability for torturing Americans, no matter how many criminal laws against torture they violate. The idea is that the federal torturers would become despondent and demoralized if criminal prosecutions were initiated against them. And how could we expect the torturers to continue torturing Americans if the torturers faced the prospect of criminal prosecution in the future?

Of course, the same rationale holds true for official investigations into the torture of Americans and others. If such investigations were to be conducted, then how could we count on the torturers to be ready and willing to torture in the future?

What Jose Padilla’s lawsuit is exposing is the harsh truth about the country in which we now live. Padilla is an American citizen. He was tried and convicted in a federal district court of a federal criminal offense, to wit: terrorism, and he is now serving time in a federal penitentiary for that crime. No one disputes that Padilla is a criminal.

But prior to the time that Padilla was convicted, federal officials incarcerated him in a military dungeon run by the Pentagon, where he was held for years and intentionally denied a speedy trial and due process of law. U.S. officials made it clear that if they wanted, they could keep Padilla incarcerated for the rest of his life without a trial.

During the time this American was incarcerated in that military dungeon, he was knowingly and deliberately tortured through isolation and sensory deprivation. Moreover, he was subject to being treated to the entire panoply of torture and sex-abuse techniques that the Pentagon and the CIA have imposed on people in their prison camps at Guantanamo Bay, Abu Ghraib, and elsewhere.

Padilla’s civil lawsuit is not just about him. It’s about what federal officials, including those in the Pentagon and the CIA, can now do to all Americans.

That’s a discomfort, not only for the American people, who are now subject to be treated in the same way that Padilla was treated, but also for those who wish to continue portraying the United States to the rest of the world as a paragon of freedom, morality, human rights, and due process of law.

Of course, I would be remiss if I didn’t point out that when it comes to torture, liberal icon Barack Obama has turned out to be no different from conservative icon George W. Bush. They both utter the same anti-torture mantras (“We don’t torture” or “We won’t torture anymore”) while steadfastly insisting on civil and criminal immunity for federal torturers and steadfastly opposing official investigations into the federal government’s torture regime.

Was John Yoo simply delivering a good-faith legal opinion on torture or was he instead knowingly, intentionally, and deliberately participating in and facilitating an illegal torture regime through the issuance of bogus legal memos? Jose Padilla’s lawsuit, which will likely entail depositions under oath, might go a long way to answering that question, much to the chagrin of the defenders of torture.

Jacob Hornberger is founder and president of The Future of Freedom Foundation, publisher of Your Money or Your Life: Why We Must Abolish the Income Tax by Sheldon Richman. Send him email.