Worldview Commentary No. 275 on Chicago Public Radio, 91.5 FM WBEZ

| By: Susan Good

“Padilla v. Yoo: The Alleged Torture”

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Alleging that he was tortured during three and a half years behind bars at a Navy brig in
South Carolina, Jose Padilla, a United States citizen, has now sued John Yoo, the former
Justice Department lawyer who reportedly devised the legal theories to justify the
interrogation techniques used on Padilla. While Padilla raises a number of constitutional
claims, including violations of his rights to counsel and to exercise his Muslim religion,
the heart of his lawsuit is that Yoo’s legal advice purported to justify his torture, in
violation of Due Process of Law as guaranteed by the Fifth Amendment to the
Constitution.

Padilla, who is separately appealing his recent conviction for conspiracy to commit
terrorism, asks the court to award him a declaratory judgment that his treatment violated
the Constitution, and to order Yoo, now a law professor at Berkeley, to pay him one
dollar in damages.

Padilla’s suit raises important questions of law and fact. For example, what is the scope
of immunity from liability for lawyers who give bad legal advice to federal officials?
Former Assistant Attorney General Jack Goldsmith, who later revoked Yoo’s key torture
memorandum, calls Yoo’s legal advice “deeply flawed: sloppily reasoned, overbroad,
and incautious in asserting extraordinary constitutional authorities on behalf of the
President.” Even so, was Yoo’s advice the proximate cause of any mistreatment of
Padilla?

However such questions of law are resolved – I will tackle them in next week’s
commentary – Padilla’s allegations of his treatment in prison, if true, ought to shame a
civilized society.

According to Padilla’s complaint, he was imprisoned in a nine foot by seven foot cell in
the Navy brig in Charleston for three years and eight months. For the first 21 months, he
was denied all contact with anyone outside the brig, including his family and lawyers.
His only human contact was with interrogators and guards.

His keepers deliberately set out to disorient him and to destroy his mental equilibrium by
means of sensory deprivation. He was allowed no watch or clock, nor any news about
the outside world. The only window in his cell was blacked out. When he was allowed
out of his cell, his eyes and ears were covered.

Periodically he was subjected to absolute light or darkness for periods in excess of 24
hours. He was subjected to extreme variations of the temperature in his cell, where his
bed consisted of a cold steel slab with no mattress, pillow or blanket. He was regularly
subjected to loud noises at all hours of the night, caused by brig guards and others
deliberately banging on the walls and bars of his cell. He was also forced to endure
noxious fumes injected into his cell, causing pain to his eyes and nose.

For hours at a time, he was kept shackled and manacled, or forced to sit or stand in
markedly uncomfortable and painful positions for hours on end.

His interrogators threatened to cut him with a knife and to pour alcohol into the wounds.
They also threatened to kill him straightaway, or to send him to another country where
they said he would receive far worse treatment. Against his will, they administered
chemicals, which Padilla believed were psychotropic drugs.

When his lawyers were finally allowed to meet with him, he was not permitted to tell
them about conditions in the prison or about any of the interrogation methods.

If Padilla’s allegations are true, they clearly meet the definition of torture under
international law: the intentional infliction of severe physical or mental pain for purposes
such as interrogation. The United Nations Committee on Torture and the Inter-American
Court of Human Rights, among other international bodies, have held that incommunicado
detention, even for periods far shorter than Padilla endured, is torture. They have also
ruled that combinations of sensory deprivation techniques amount to torture as well.

And for good reason. According to Padilla’s complaint, a “substantial body of clinical
literature and expert opinion … holds that restriction of environmental and social
stimulation has a profoundly deleterious effect on mental functioning, and that even a few
days of solitary confinement predictably causes brain patterns to become measurably
abnormal.”

Whatever the ultimate fate of Padilla’s lawsuit, Congress, which is already inquiring into
the interrogation techniques used by the CIA against foreign nationals overseas, should
examine what was allegedly done to a United States citizen inside the United States. Do
we really want our government, with no judicial supervision, to have license to treat
American citizens in this way?


Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the
Worldview program on Chicago Public Radio, 91.5 FM, and rebroadcast at 9 PM in the evening.
Views expressed are personal views of the author and not necessarily those of Notre Dame Law
School, the Center for Civil and Human Rights or Chicago Public Radio.