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Wed May 9, 2012, 10:20 PM

Yoo, Latif, and the Rise of Secret Justice

By Scott Horton

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.

remainder: http://www.harpers.org/archive/2012/05/hbc-90008612

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Response to Jefferson23 (Original post)

Thu May 10, 2012, 11:46 AM

1. Murder is murder, rape is rape and torture is torture, period.

Thanks for the thread, Jefferson.

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Response to Uncle Joe (Reply #1)

Thu May 10, 2012, 08:38 PM

2. Yes it is and always will be, but it must be an enormous relief to have Bybee watching your back

while you do it.

You're most welcome for the thread, I wish there had been a just outcome.

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Response to Jefferson23 (Original post)

Fri May 11, 2012, 12:31 AM

3. The Guantanamo trials have similarities that should chill the hearts of all Americans who claim to

believe in justice.

Just over a decade ago, who would have believed that evidence obtained by days and days - maybe even months - of torture would be admissible in a US-run courtroom proceedings? This is a huge departure from American due process and justice as we thought we knew it.

Our President, who as a senator spoke out opposing this, now sells it to us as acceptable and necessary. When the government and the leaders deny what the constitution and history have held as due process and establish new judicial rules of their own making that have never used before, the country will forever be changed, and not necessarily in a good way.

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Response to sad sally (Reply #3)

Fri May 11, 2012, 01:39 PM

4. How do you like this? Predates Obama, sickening but the truth is not many give a damn.

Democratic Senator Charles Schumer noted that he supported Bybee's confirmation specifically because the judge's conservative views would help to moderate "the most liberal court in the country.


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Response to Jefferson23 (Reply #4)

Fri May 11, 2012, 10:56 PM

5. Bybee is the federal judge that just this week reversed the May 2011 ruling that VA hospitals should

overhaul their mental health care system - mainly stemming from the increased number of veterans who are forced to wait for years for mental health care and the increased number who end up taking their own lives.

here's what judge torture said: "There can be no doubt that securing exemplary care for our nation's veterans is a moral imperative," Judge Jay Bybee wrote for the majority. "But Congress and the president are in far better position" to decide whether and what changes need to be done."

Bybee said veterans can file individual legal claims against the VA, but that the courts had no business ordering overhauls.

Says volumes about what Schummer and Reid thought in 2003 (and now) about the rights of Americans by speaking highly of Bybee.

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