On January 23, the Fourth Circuit Court of Appeals threw out a lawsuit seeking to hold accountable current and former government officials for their role in the indefinite detention and torture of Jose Padilla, an American citizen who for more than three years was held incommunicado as an “enemy combatant” on a naval brig off the coast of South Carolina. 

In the words of ACLU attorney Ben Wizner, “Today is a sad day for the rule of law and for those who believe that the courts should protect American citizens from torture by their own government. By dismissing this lawsuit, the appeals court handed the government a blank check to commit any abuse in the name of national security, even the brutal torture of a U.S. citizen on U.S. soil.”          

On the same day as the Padilla lawsuit was tossed out of court, the Justice Department indicted a former CIA officer, John Kiriakou, under the Espionage Act. Among other things, hewas charged with passing classified information to a New York Times journalist about the CIA officer involved in the capture and interrogation of Abu Zubaydah, who was waterboarded 83 times after being wrongly identified as a leading Al Qaeda operative. 

The CIA had initially pushed for an investigation of Guantanamo lawyers connected with ACLU’s John Adams Project in 2009, after photographs of unidentified men – believed to be interrogators – were found in the cells of Guantanamo detainees who were facing capital charges. The lawyers reportedly received the photos from journalists. They were hoping that the detainees could point to people who had interrogated them and who could be called as potential witnesses.  Instead of snaring the ACLU, the investigation conducted by US Attorney Patrick Fitzgerald – who is now presiding over the grand jury investigating anti war activists – has targeted one of the CIA’s own.

Although the ACLU has been cleared of wrongdoing, ACLU executive director Anthony Romero feels there is little reason to celebrate. “It is astonishing that our conduct was under review in the first place…Not even J. Edgar Hoover or President George W. Bush investigated the ACLU’s activities…It remains troubling that the government has failed to indict the CIA agents who participated in torture.”

On his very first day in office, in addition to announcing an end to torture and the impending closure of Guantanamo, President Obama declared that he was signing an executive order committing his Administration to “an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation and collaboration. Openness will strengthen our democracy.”

Instead, over the past three years we have seen an unparalleled resort to secrecy to keep government actions from public scrutiny. Simultaneously, we have seen an unparalleled zeal in the pursuit of leakers of government secrets – to date, there have been six such indictments (with WikiLeaks and Assange in the wings) from the same administration that maintains it will not hold anyone accountable for torture or other illegal acts because it is determined to look forward, not back.

We may not have entirely reached the end of the road for the effort to hold US officials accountable for torture. After the US used all the pressure at its command to prevent foreign governments from letting the truth see the light of day, a Spanish judge on January 13 invoked the principle of universal jurisdiction to investigate the claims of Spanish citizens that they were tortured at Guantanamo.

But it is hard to imagine either the truth or the light flourishing in a country where potential whistleblowers and journalists could well face Espionage Act prosecutions and decades in prison for piercing the veil of secrecy. Think of what that can mean as this or future Administrations reach for the powers enshrined in the National Defense Authorization Act (NDAA). With the military and secretive CIA increasingly involved in national security investigations in the so-called ‘Homeland,’ how many Jose Padillas will be marooned in indefinite detention without us even knowing it?

Facing this bleak prospect, the Pulitzer-Prize winning journalist Chris Hedges has brought a lawsuit against President Obama and the NDAA. The kind of grassroots movement that led to over 400 cities and towns and eight state legislatures passing resolutions against the USA PATRIOT Act is again stirring into life, this time in opposition to the NDAA.

The Bill of Rights Defense Committee website has the tools you need to take a stand against the NDAA at the state and community level. Contact us and tell us what you are doing. Let’s use the First Amendment while we still have it.