EXCERPT:
There are legalistic questions involved in cases such as the one brought by Padilla -- i.e., whether courts should allow monetary damages to be sought against government officials for Constitutional violations in the absence of a Congressional statute (a "Bivens" claim) and whether such officials should enjoy "qualified immunity" for their illegal acts where the illegality is unclear (as Rumsfeld absurdly alleged the torture of Padilla was) -- but one key fact is not complex. Not a single War on Terror detainee has been accorded any redress in American courts for the severe abuses to which they were subjected (including innocent people being detained for years, rendered and even tortured), and worse, no detainee has been allowed by courts even to have their claims heard. After the U.S. Government implemented a worldwide regime of torture, lawless detention, and other abuses, the doors of the American justice system have been slammed shut in the face of any and all victims seeking to have their rights vindicated or even their claims heard. If an American citizen can't even sue political officials who lawlessly imprison and torture him in his own country -- if political leaders are vested with immunity from a claim of this type -- what rational person can argue that the rule of law or the Constitution binds our government officials?
In one sense, this is hardly surprising. As I've written about before -- and as my forthcoming (September) book documents -- we now have a multi-tiered justice system in the United States where citizens have their legal rights, obligations and punishments determined exclusively by their status and class. Thus, someone like Jose Padilla, in the lowest class of literal non-person (accused Terrorist), has virtually no chance regardless of the merits of his claims against someone like Donald Rumsfeld, who resides in the highest and most privileged class (high-level political official). As Padilla's counsel, Ben Wizner, said, the court yesterday ruled "that Donald Rumsfeld is above the law and Jose Padilla is beneath it." That's just what the American justice system is.
But compare the posture of the American justice system to those in other countries with regard to how victims of illegal War on Terror policies have been treated. Maher Arar -- a Canadian citizen who was abducted by the U.S. in 2002 at JFK Airport and sent to Syria to be tortured for ten months despite being innocent -- had his case dismissed by American courts before it was even heard on the ground (raised by both the Bush and Obama DOJ) that vital state secrets would be jeopardized by allowing him his day in court; by stark contrast, the Canadian government published a comprehensive public report detailing its own culpable role (and that of the U.S.) in his wrongful abduction, while the Canadian Prime Minister publicly apologized to Arar and announced that he would be paid $8.9 million in compensation for Canada's role in what happened to him.
Binyam Mohamed -- the British resident who was rendered to Morocco and then brutally tortured at Guantanamo -- suffered the same treatment in American courts as Arar thanks to the Obama DOJ's insistence that what was done to him was a "state secret": his case was dismissed at the initial stage; by contrast, British courts repeatedly ruled in favor of his right to be heard in court, and in November, 2010, it was announced that the British government would pay him, along with 15 other Guantanamo detainees, several million dollars in damages. In January, 2011, an Egyptian-born Australian citizen, Mamdouh Habib, reached a monetary settlement with the Australian government after winning the right to sue Australian officials in that nation's court system for their collusion in his torture at Guantanamo and other locations. Similarly, numerous countries in both Eastern and Western Europe and elsewhere have probed and publicly accounted for their governments' role in colluding with the U.S. in abusing human rights over the last decade.
The U.S. Government stands virtually alone in steadfastly blocking all such investigations even though it was the U.S. in the lead in creating this torture and detention system. Indeed, the American political class barely bothers any longer with even the pretense of legal accountability. Each political party shields the other from any accountability in a ritual of lawlessness, while the courts concoct ever-new doctrines for shielding our political class from any legal scrutiny
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