4th Circuit hears ‘enemy combatant’ case

RICHMOND, Va. — Lawyers for a U.S. citizen who was detained for nearly four years as an “enemy combatant” asked a federal appeals court Wednesday to reinstate a lawsuit against former Defense Secretary Donald Rumsfeld and other government officials.

Jose Padilla’s attorneys argued that the officials should be held accountable for their part in his illegal detention and torture in the Navy brig in Charleston, S.C.

Ben Wizner, litigation director with the American Civil Liberties Union’s National Security Project, told a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond that Padilla underwent “brutal abuse,” sensory deprivation and isolation, and was denied access to lawyers.

Padilla, 41, was arrested in 2002 on suspicion that he was collaborating to build a radioactive bomb. Government officials labeled him an “enemy combatant” and transferred him from a civilian jail to the Charleston brig, where guards and interrogators imposed conditions similar to those at the Guantanamo prison in Cuba.

Wizner said Padilla is entitled to sue because he was deprived of other ways to seek remedies for his treatment, including through the military code. He also argued that Congress has never specifically barred citizens deemed “enemy combatants” from pursuing civil actions as it did for non-citizens.

Judge J. Harvie Wilkinson III asked whether the court should open the door to such litigation for several reasons, including the possibility that government officials tasked with interrogating or detaining terrorism suspects might be deterred from taking some actions that could protect public safety and human lives.

But Wizner said such deterrence of abuse is “a virtue, not a vice.”

The ACLU filed suit on behalf of Padilla and his mother, Estela Lebron, in 2007, naming Rumsfeld, then-Defense Secretary Robert Gates, former brig commanders and others. The lawsuit alleges that Rumsfeld and his subordinates developed the “enemy combatant” status as an end-run around suspects’ constitutional protections, and that they approved of and knew about harsh interrogation measures used against Padilla and others.

A federal judge in South Carolina dismissed the lawsuit in February, agreeing with the defendants’ lawyers that they had qualified immunity and are shielded against such legal actions because of foreign policy and national security implications. He also speculated that the process of discovery in lawsuit would compromise military and intelligence operations.

The government ultimately dropped the dirty-bomb charge, and Padilla’s lawyers challenged his detention. After officials released him from the brig, they transferred him to the civilian court system, where a Florida court convicted him in 2007 of supporting terrorism in Kosovo, Bosnia and Chechnya. He’s serving 17 years while that case is under appeal.