Feds defend torture before 2nd Circuit
This man's treatment, and the defense's arguments, constitute another step in the legitimization of torture, and the dumbing-down of the word's definition. But at least the judiciary is showing a semblance of backbone here. From the New York Times, Oct. 5 (links, interjections and emphasis added):
Judges Zero In on Treatment of a Detainee
In sharp questioning, a three-judge panel yesterday challenged arguments by federal officials seeking dismissal of a Pakistani man’s suit charging that because of his religion, race or national origin, he, like others, was held for months after 9/11 in abusive solitary confinement before being cleared of links to terrorism and deported.
In the mahogany and marble splendor of the Second Circuit Court of Appeals in Lower Manhattan, lawyers for former Attorney General John Ashcroft and other government officials argued that the officials were entitled to immunity from the lawsuit filed by the man, Javaid Iqbal, who had been known as “the cable guy” to his Long Island customers before he was swept into a federal detention center in Brooklyn as were hundreds of other Muslim immigrants in the New York area.
From the start of yesterday’s two-hour hearing, one of the judges, Jon O. Newman, showed particular impatience with the narrow legal defenses offered by the defendants in the case, which lawyers for Mr. Iqbal say seeks accountability for what they call serious constitutional violations by the nation’s highest law enforcement officials. It is the first case of its kind to reach the appellate level.
Judge Newman was especially scathing in questioning the lawyer for Dennis Hasty, formerly the warden of the etropolitan Detention Center, where Mr. Iqbal and 184 others designated by the Federal Bureau of Investigation as “of high interest” were confined in a special unit where a 2003 Justice Department Inspector General’s report found widespread abuse.
Mr. Hasty’s lawyer, Michael L. Martinez, had argued in his brief that even if everything alleged in the lawsuit were true — as the appellate judges must assume at this stage of the litigation — Mr. Iqbal’s treatment “never approached the level of a due process violation.”
“Beatings?” Judge Newman asked. “Exposure to air-conditioning after standing in the rain? Needless strip-searches? Never approached a due process violation? If I thought your client really believed that, I’ve got to tell you, I’d be really troubled.”
Judge Robert D. Sack was equally acerbic in commenting on a defense assertion that the complaint failed to link Mr. Hasty personally to what was going on at the detention center.
“He is the warden,” Judge Sack said. “If he didn’t know what was going on — I’m boggled twice in one argument.”
Mr. Martinez replied that five years after 9/11 it was easy to criticize decisions made at the time. He cited legal precedents holding that “the courts are ill-equipped to second-guess what goes on in prisons.”
Earlier, Judge Newman interrupted Lauren Resnick, the lawyer representing two former officials of the F.B.I., Michael Rolince, the agency’s former chief of counterterrorism, and Kenneth Maxwell, a former special agent in charge of the F.B.I. office in New York, as she argued that the complaint was not specific enough in linking the F.B.I. supervisors to what another federal bureaucracy was doing in the detention center.
“You don’t think your clients had a major role in the decision not to release these plaintiffs?” Judge Newman asked. He was referring to findings by the Inspector General that detainees picked up on called-in tips were often designated “high-interest” and held in highly restrictive conditions until the F.B.I. cleared them, a process that took months because it was not a high priority.
“Are you telling me that they were unaware that they were being held in highly restrictive conditions?”
Instead of answering, Ms. Resnick kept repeating the legal position that the complaint itself was deficient in the way it made its accusations.
Earlier this year, the federal government agreed to pay $300,000 to another plaintiff in the same suit, settling his claim without admitting to wrongdoing. The government, which in a lower federal court lost its effort to dismiss Mr. Iqbal’s lawsuit without testimony, is seeking to overturn that ruling. It also lost a similar motion in a companion lawsuit brought as a class action by other former detainees.
Mr. Iqbal eventually pleaded guilty to credit-card fraud and was deported to Pakistan.
Many legal arguments yesterday concerned Supreme Court rulings on governmental immunity. Judge Sack and Judge Jose A. Cabranes suggested that a case now pending before the Supreme Court might affect the question, and asked for memos by Oct. 9 on whether a delay would be appropriate.
Gregory G. Garre, a Justice Department lawyer representing Mr. Ashcroft and Robert S. Mueller III, the director of the F.B.I., said that context was everything in judging whether Mr. Iqbal’s treatment, as alleged, violated any known constitutional rights.
“If there’s anything that the court can take judicial notice of,” he said, “ it’s that 9/11 was the most deadly foreign attack on domestic soil.” [OH PLEASE, SPARE US!!!—WW4R]
In his rebuttal on behalf of Mr. Iqbal, whose lawsuit was brought by the Urban Justice Center, Alexander A. Reinert argued that questioning officials was necessary to determine how 9/11 actually affected Mr. Iqbal’s treatment.
Mr. Iqbal’s lawsuit charges that Mr. Ashcroft and others created a discriminatory policy that was “applied to Mr. Iqbal in some of the most horrific conditions of confinement,” he said, and that they knew or should have known it.
“They may believe the facts will disprove it,” added Mr. Reinert, of Koob & Magoolaghan, “but that’s exactly what discovery is for.”
At the close of the hearing, Judge Newman questioned Mr. Garre, as the sole Justice Department lawyer, about another assertion in Mr. Hasty’s brief. It contends that Mr. Iqbal’s lawsuit itself shows there were “only minimal restrictions” on his ability to practice his religion, since he complained that his Koran had been routinely confiscated and that guards had banged on his cell door when he tried to pray, which demonstrated that he had been allowed to pray and to have a Koran.
In a tone of outraged incredulity, Judge Newman repeated the phrase “only minimal restrictions,” first pressing Mr. Hasty’s lawyer to say whether that was really his client’s position or “just hyperbole by his lawyer,” and finally asking Mr. Garre whether that was the government’s position.
Mr. Garre replied, “Specific abuse like that is not something that’s condoned by the United States.”
For how much longer. Mr. Garre? For how much longer?
See our last post on the torture scandal.