Torture, due process, and remedies

Emptywheel notes another district court's holding that torture of a suspected terrorist does not suffice to dismiss his indictment under the Due Process Clause, though unfortunately this is blogged under the title "Judge Rules Torture Doesn’t Violate Due Process," which is a bit excitable.

It seems pretty clear that the Due Process Clause, not the Eighth Amendment, is the correct rubric for considering pretrial abuses (Ingraham v. Wright, 8th Am. attaches only upon conviction & sentencing). Bell v. Wolfish, addressing a class-action suit by double-bunked jail inmates, stated the analysis:

under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. * * * the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.

Graham v. Connor held it to be “clear” that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment,” citing Bell, and at least implying that the right in question is substantive due process, not procedural (see fn. 10).

For whatever reason, Judge Kaplan in Ghailani does not consider the foregoing precedents, though he does locate Ghailani's claim as being for substantive due process. However, Kaplan is concerned with the narrow question of whether alleged torture suffices to dismiss an indictment; the argument is convincing, and nothing in Emptywheel's post suggests that this was legally erroneous.

She does object, however, that the alternative remedies suggested by the court -- "money damages or criminal prosecution of the offending officers" -- do not seem to be practically available.

It's true that Obama doesn't care about prosecuting torturers, but whether Bivens liability attaches is an unresolved issue, AFAIK. It's true that various statutes seem to immunize CIA torturers et al.; whether the Congress can constitutionally deprive a torture victim of any civil remedy is unknown to me.