Yoo, Latif, and the Rise of Secret Justice

[Solly Mack]

by Scott Horton (Harper's)

One of the lasting challenges to America’s federal judiciary will be addressing American complicity in the tortures and disappearances of the past ten years. Two recent appeals-court decisions show us how judicial panels are tackling these issues: by shielding federal officials and their contractors from liability, and even by glorifying the fruits of their dark arts. In the process, legal prohibitions on torture are being destroyed through secrecy and legal sleight of hand, and our justice system is being distorted and undermined.

Last week, the Ninth Circuit reversed a district-court decision allowing a suit against torture-memo author John Yoo to go forward. The suit had been brought on behalf of José Padilla by his mother, who argued that Padilla was tortured while in U.S. custody as a result of Yoo’s advice—a claim that seems pretty much unassailable, and that had to be accepted as true for purposes of the preliminary rulings. In a decision that has left international-law scholars dumbstruck, the Ninth Circuit granted Yoo immunity, concluding that the law surrounding torture was so muddled when he dispensed his advice that he should be given the benefit of the doubt. The best authority the judges could muster for this outlandish perspective was a European Court of Human Rights decision from 1978, which found that a series of grim techniques used by Britain against Irish internees was not torture—rather it was “cruel, inhuman and degrading treatment.”

Hovering in the background of the Ninth Circuit’s opinion is a troubling fact: John Yoo had a co-author when he crafted his torture memoranda, Jay Bybee. And Bybee is now a judge on the Ninth Circuit. Had the court handed down any other ruling, it would have been exposing one of its own. The court’s twisted reasoning and distortions of legal precedent otherwise make very little sense. Indeed, the Ninth Circuit judges seemed to be uncomfortable with torture, issuing an opinion that was comparable to a surgical excision: do what is essential to shelter Yoo and Bybee, and not an iota more.

The D.C. Circuit, conversely, has developed a real hankering for torture. Exhibit A in its judicial immorality tale is the astonishing 2–1 decision handed down in October in the Latif case, in which two movement-conservative judges overruled a district court that had concluded that Latif—a thirty-six-year-old Yemeni who has spent the past ten years of his life in prison in Guantánamo without being charged and with only vague suspicions connecting him to terrorist groups—should be released because the record did not contain sufficient evidence to warrant a life sentence in the absence of charges. Judge Janice Rogers Brown, a George W. Bush appointee, wrote that the usual presumptions had to be reversed in cases involving Guantánamo detainees: the government’s secret conclusions had to be presumed correct unless they were contradicted by compelling evidence to the contrary. In Brown’s perspective, the analytical report on Latif prepared by CIA officers—who were under immense pressure to justify detentions even when the evidence plainly indicated very little to no basis for them, as Glenn Carle and other CIA case officers have openly acknowledged—was entitled to a “presumption of regularity.” Because key parts of this report were classified, it was not entirely accessible by the petitioner, denying him the ability to effectively rebut it.

[coalition_unwilling]

1. Thanks for posting. I just put a torture enabler (Yoo defender) on

full Ignore because I no longer cared to listen to his palaver. But I would assume he is out there still lurking amongst the weeds, ready to pounce on your OP.

It is beyond passing bizarre to me that these torture enablers remain on DU and I do not presume to explain their continued presence here, except to summon that old canard that politics, and the Democratic Party, make strange bedfellows.

Full article is well worth the read, imo.

[freshwest]

2. For the 9th to 'do what is essential to shelter Yoo and Bybee' is a disgrace.

They have made a mockery of everything that people have fought for in order to continue their cronyism. They are in charge of sending cases to the USSC, which is corrupted to the core. The only power we have left is the legislature, and people don't want to be involved in the process enough to vote.

This is scary and sickening. Thanks for posting so we can see what it is. The other decision in Europe also stank. Just because they have a good command of language, defining what the UK did in different terms from torture doesn't change what it is.

Do you begin to see, then, what kind of world we are creating? It is the exact opposite of the stupid hedonistic Utopias that the old reformers imagined. A world of fear and treachery and torment, a world of trampling and being trampled upon, a world which will grow not less but more merciless as it refines itself. ~George Orwell

[BlueIris]

3. I feel like I live in '70s Argentina.

It's creepy.

[malaise]

4. Important post

K & R

[Canuckistanian]

5. Anyone remember FISA courts?

Weren't these kind of cases supposed to be handled by FISA?

BTW, what IS the FISA court doing these days? Are the judges sitting around like Maytag repairmen?