The US Supreme Court on Monday declined to take up a case examining whether government officials who order the alleged torture of a US citizen on American soil can be sued for violating the citizen’s constitutional rights.

Apparently, the answer is no.

The high court rejected, without comment, an appeal filed on behalf of former enemy combatant José Padilla, who was held for 3-1/2 years in military detention. Mr. Padilla was subjected to harsh interrogation techniques to break him psychologically and force him to reveal everything he might know about Al Qaeda.

“The Supreme Court’s refusal to consider Jose Padilla’s case leaves in place a blank check for government officials to commit any abuse in the name of national security, even the brutal torture of an American citizen in an American prison,” said Padilla’s lawyer, Ben Wizner of the American Civil Liberties Union.

“To date, not a single victim of the Bush administration’s torture regime has received his day in court,” Mr. Wizner added in a statement.

“It is precisely the role of the courts to ensure that allegations of grave misconduct by executive branch officials receive fair adjudication,” he said. “That vital role does not evaporate simply because those officials insist that their actions are too sensitive for judicial review.”

US citizen as enemy combatant

Padilla’s case rose to prominence because he was the first American citizen arrested in the US to be designated an enemy combatant and subjected to open-ended detention and harsh interrogation tactics.

Lawyers working on his behalf waged a multiyear effort to win a measure of judicial review to determine the legality of his detention. After years of inconclusive litigation and with the Supreme Court poised to finally consider his appeal, the government rendered the case moot by transferring Padilla from military detention to the criminal justice system.

After a trial in federal court in Miami, he was convicted of conspiring to provide material support to Islamic terror groups. He is currently serving a 17-year prison sentence.

In 2007, prior to his criminal trial, Padilla and his mother, Estela Lebron, filed a civil lawsuit against former Defense Secretary Donald Rumsfeld and other military officials for authorizing and directing his alleged torture.

Lawyers acting on Padilla’s behalf sought a court judgment that their client’s treatment violated the Constitution. They also asked for nominal damages of $1 from each of the named defendants.

Path through the courts

A federal judge and a federal appeals court threw the suit out, ruling that it was beyond the expertise of the federal courts to examine sensitive issues of military interrogation policy and intelligence gathering.

In urging the high court to hear the appeal, Padilla’s lawyers said the appeals court had granted military officials a “sweeping national security exemption” for gross government misconduct.

“It is hard to conceive of a more profound constitutional violation than the torture of a US citizen on US soil,” Wizner wrote in his brief urging the high court to take up Padilla’s case.

“With the court of appeals’ holding that Mr. Padilla’s claims of torture are nonjusticiable, our legal system has arrived at the bottom of the slippery slope,” he said.

Lawyers for Mr. Rumsfeld and the other military officials, urged the high court to reject the appeal.

“Petitioners seek to provide enemy combatants fighting against the United States with damages remedies that are clearly unavailable" to US soldiers, Washington Attorney Richard Klingler wrote in his brief on behalf of the defendants in the suit.

“This court has repeatedly emphasized that courts should hesitate before intruding into matters where sensitive interests in national security and foreign affairs are at stake,” Mr. Klingler told the justices.

Padilla's story

Padilla was arrested in 2002 shortly after arriving in Chicago from the Middle East. He was arrested by the Federal Bureau of Investigation and initially held in the criminal justice system in New York. On the eve of a court-hearing seeking his release, the government designated Padilla an enemy combatant and transferred him to a military brig in South Carolina.

Bush administration officials justified his detention in military custody with the alarming accusation that Padilla was plotting with Al Qaeda to launch an imminent radiological “dirty bomb” attack on a US city.

That allegation was later dropped. Nonetheless, Padilla was subjected to a systematic regime of extreme isolation, sensory deprivation, stress positions, and other controversial behavior-modification techniques designed to facilitate his ongoing interrogation. Time was of the essence, according to government officials. Extreme measures were deemed necessary and were approved by senior officials.

During the early stages of his interrogation in 2002 and early 2003, he was effectively “disappeared.” He was housed in a single cell with windows blacked out, the only prisoner on an entire maximum security wing of the brig. He was denied all contact with the outside world – no lawyer, no family members, no opportunity to see a judge. After 10 months, the US government allowed him to send brief word to his mother that he was still alive.

In the meantime, unknown to Padilla, lawyers working on his behalf filed a habeas corpus petition to force the government to defend the legality of Padilla’s military detention before a neutral judge.

Government lawyers argued that the president possessed the authority to take a US citizen out of the criminal justice system and into open-ended military detention without judicial oversight. A federal judge agreed, but was reversed by a federal appeals court panel in New York. The panel ordered Padilla’s release.

The issue went to the US Supreme Court, which side-stepped the question and decided instead that Padilla’s lawyers had filed their habeas petition in the wrong location.

Since Padilla had been transferred from a New York jail to a military brig in South Carolina, his lawyers would have to start over and file their case in South Carolina.

By that time Padilla had already been in military detention and under interrogation for two years. It would take another year and a half for his habeas petition to again reach the Supreme Court.

Padilla's conviction

When it did, rather than urge the high court to examine the circumstances and legality of Padilla’s detention, the Bush administration rendered the underlying habeas petition moot. It was done by transferring Padilla back into the criminal justice system.

Padilla was added to an existing indictment in Miami. He was accused with others of conspiring to provide material support to Al Qaeda and other militant Islamic groups.

Padilla and his co-defendants were eventually convicted in a 2007 criminal trial. Prosecutors were barred from using information obtained during coercive interrogations – including from Padilla’s 3-1/2 years in military custody.

They introduced what prosecutors said was an official Al Qaeda information form reportedly maintained at a guest house in Afghanistan. They said the document proved that Padilla had received training at an Al Qaeda camp.

Padilla was found guilty of providing himself as a recruit to an organization that engaged in terrorism. Prosecutors offered no evidence at trial that Padilla personally engaged in terrorism, that his actions contributed in any way to a death or injury, or even that he was personally aware of a terror attack conducted by a militant Islamic group – including the 9/11 attacks.

Nonetheless, the jury concluded that Padilla engaged in a conspiracy to provide material support to Al Qaeda knowing or intending that his support would be used to carry out a conspiracy to murder, kidnap, or maim persons overseas. Prosecutors asked for a life sentence.

Padilla is currently serving his 17-year term in the maximum security wing of the federal prison at Florence, Colo.

“This case tests the judiciary’s commitment to ‘freedom’s first principles,” Wizner said in his brief. “Executive officials have claimed immunity for the torture of a US citizen in South Carolina. In averting its eyes from that misconduct, the court of appeals relegated the defense of a core individual liberty to the political branches alone. Our system of checks and balances cannot tolerate that result.”