Rule of Law?

Let me see if I’ve got this: the Bush Administration, having succeeded in muddying the waters about what the definition of torture is, now claims that the very lack of clarity it created is a reason no one can be held accountable for violating the rights of an American citizen arrested on American soil? That seems to be the situation described in this Christian Science Monitor piece on the Padilla case.

Given the government’s reliance on “clearly established” law, the Padilla civil case could present an ironic twist in the long and heated debate over Bush administration tactics in the war on terror. White House and Justice Department officials worked hard in the years since the 9/11 attacks to maximize legal flexibility in dealing with detainees. They sought to clarify the law in a way that would protect interrogators, soldiers, and other US officials from civil suits and war-crimes charges.

Instead of clarification, the efforts triggered debates both within and outside the administration over what the law should be.

Now, legal analysts say, the administration may rely on the lingering uncertainty to help shield US officials from legal liability. “It will make it a lot harder for plaintiffs [like Padilla] to win a lawsuit because there is a much better argument that the relevant laws aren’t clearly established,” Professor Vladeck says.

“Even though Padilla’s rights may have been violated, the real question is whether it was clearly established that what the government was doing to him was illegal,” Vladeck says. “One can’t help but wonder based on the torture debate whether anything was clearly established.”


Published on October 19, 2007


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