While conceding that “Torture is illegal under federal law, and the United States government repudiates it”, even now the Solicitor General stops short of acknowledging that torture directed, approved and implemented by officials of the United States is so repugnant that it also violates fundamental rights; no less so when hidden from public view at Guantánamo Bay. Respondents appear willing to let the final word on torture and religious abuse at Guantánamo be that government officials can torture and abuse with impunity and will be immune from liability for doing so. Yet whether United States officials are free to engage in despicable acts in a place wholly controlled by the United States is the pre-eminent constitutional issue of our time, and it is squarely presented to this Court for decision in this case.

Rasul v. Rumsfeld, as I’ve explained before, is one of the first lawsuits brought by victims of the Bush administration’s torture and abuse policies. The plaintiffs claim they were in Afghanistan to do humanitarian relief work when they were captured by the Northern Alliance and turned over (or sold for bounty) to U.S. authorities. They were eventually shipped to Guantanamo Bay, where they were imprisoned in cages and, they claim, tortured and humiliated, forced to shave their beards and watch their Korans desecrated. All of these claims are backed up by the legal memos that have since been produced from the Department of Justice that authorized such techniques as part of “enhanced” interrogations. The men were returned home to the UK without charge in 2004.

Many other victims of the Bush administration’s abuse policies have been precluded from suing because in 2006, Congress passed the Military Commissions Act, which stripped the federal courts of jurisdiction over claims challenging the “detention, transfer, treatment, or conditions of confinement” of detainees who were considered “enemy combatants” by the U.S. military and detained abroad. (That provision of the law is being challenged in another lawsuit filed recently, which I describe here.) The plaintiffs in the Rasul case, however, were never even deemed “enemy combatants” by the U.S. military.

Still, the Obama administration is arguing, as it is in other cases, that it was not clear that foreigners picked up in Afghanistan and sent to Guantanamo Bay had a right not to be tortured by the U.S. government. But more than that, it’s arguing — as the lawyers in the Rasul case emphasize in the excerpt from their brief I quoted above — that there is no right under the Constitution not to be tortured at Guantanamo Bay, or at any offshore American-run prison.

As the Department of Justice recently wrote in another torture case: The “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees.”

In other words, it’s not just that former detainees can’t sue Bush administration officials for torture because the law wasn’t clear back in 2002 or 2003, but the Obama administration is arguing also that there is no fundamental right not to be tortured, and therefore any government official in the future could similarly claim to be immune from a lawsuit for torture.

Eric Lewis and the Center for Constitutional Rights, who represent the four British men in the Rasul case, are now pleading with the U.S. Supreme Court to say it isn’t so, and accept their appeal from a D.C. Circuit Court ruling that dismissed the case.

The government seeks “to leave the law unsettled and to pull a cloak of immunity, now and in the future, over government torturers,” they write in their brief.

It is essential that this Court lay down a strong and clear message that officially ordered torture is abhorrent and always a violation of fundamental rights. Without this Court’s guidance, the court of appeals’ studied indifference to the torture of Guantanamo detainees remains the final word on the issue and, indeed, could provide further cover for a claim of qualified immunity in the future in the unfortunate event that the specter of torture recurs.

Tavis Smiley interviews Barack Obama in October 2007 (YouTube: BarackObamadotcom)

As the housing market began booming in the mid-2000s, Wells Fargo & Co. teamed up with prominent African American commentator and PBS talk show host Tavis Smiley and financial author Kelvin Boston, the host of “Moneywise,” a multicultural financial affairs show, to host something called “Wealth Building” seminars in black neighborhoods.

Smiley was the keynote speaker, and the big draw, according to Boston and Keith Corbett, executive vice president of the Center for Responsible Lending, who attended two of the seminars. Smiley would charge up the audience — and rattle the Wells Fargo executives in attendance — by launching into a story about how he hated banks, and how they used to refuse to lend him money for his real estate projects in Compton, Calif., and elsewhere. After Hurricane Katrina, Smiley also emphasized the importance of building assets and wealth, saying those who had done so were able to leave New Orleans, while people with nothing had to stay behind, Boston said.

Illustration by: Matt Mahurin

“My spiel was the financial planning process, how you want to be able to save and invest for the future, and to have a plan of action,” Boston said. “Then Tavis talked about his experiences with the banks, and how people should be thinking about some real estate.”

The seminars in some cities drew standing room only crowds, with numerous Wells Fargo representatives on hand, seated at carrels to meet one-on-one with potential borrowers who lined up after the speeches, which were usually held in hotels. The free, day-long events were heavily advertised in the black media, and launched in eight cities, including Baltimore, Chicago, Richmond, Va., and San Francisco.

But what appeared on the surface as a way to help black borrowers build wealth was actually just the opposite, according to a little-noticed explanation of the “Wealth Building” seminar strategy, contained in a lawsuit recently filed by Illinois Attorney General Lisa Madigan.

Wells’ plan for the seminars all along was to target black borrowers for higher-cost subprime mortgages, not for wealth-building, the suit charged. And the seminars were a part of the bank’s overall illegal and discriminatory practice of steering black and Hispanic borrowers into riskier and more expensive loans, the suit said.

“According to a former Wells Fargo Home Mortgage employee, one of these ‘Wealth Building’ seminars held in Maryland was planned for an audience that would be virtually all African American,” the suit said. “The plan for the seminar was for Wells Fargo Home Mortgage employees to talk about subprime mortgages, although they were directed by Wells Fargo Home Mortgage to use the term ‘alternative lending’ when marketing these products.”

The former employee, who is white, was scheduled to speak at the seminar, but was told by a manager that she was “too white,” and that only black employees could make presentations, the suit said.

Wells Fargo, one of the nation’s largest mortgage lenders and a recipient of $25 billion in government bailout money, has denied all the charges in the Illinois suit, as well as other allegations of unfair lending. The bank did not respond to requests for comment on the seminars. Smiley, an author and advocate who hosts the late night talk show, “Tavis Smiley,” and who organizes the State of the Black Union symposiums each year, also declined comment.

Corbett pointed out that Wells’ outreach to the minority community through the seminars wasn’t unusual. Lenders sponsoring financial literacy sessions, holding wealth building seminars, or contributing to local minority advocacy organizations, became a common marketing strategy as the subprime market grew. Some of the efforts were genuine, aimed at finding new customers in minority neighborhoods once deprived of credit. But sometimes they were used instead as a cover to push predatory loans, Corbett said.

“The wealth building seminars are certainly needed,” Corbett said. “But, if, in fact, Wells was selling bad products out of them, it was totally wrong.”

Boston, for his part, described himself as the small player in the seminars, giving an opening talk before Smiley went on. Boston said he spoke in general terms about the need to save money and to invest. Neither he nor Smiley ever mentioned or discussed subprime loans, he said.

“Basically we were just speakers for hire,” Boston said. “We didn’t have any role or any control over what else happened. The main point is that we were not involved in any of their discussions or in anything they sold.”

Corbett said that after the speakers finished, bank employees and other financial experts were offering credit checks, real estate counseling, and other kinds of assistance. Corbett said he also believes some employees were signing up people for loan pre-approvals, on the spot, though he couldn’t be sure of what kind of loans they were. He said attendees lined up to talk to the Wells employees in both events. “If they weren’t actually selling loans, they were setting up borrowers for the kill,”  Corbett said.

Once their speeches were over, however, Boston said he and Smiley  had nothing to do with the workshops and counseling. He said he and Smiley together did about 15 seminars over a period of about two years. He declined to comment on how much he or Smiley were paid.

In 2005, before the subprime crisis, Boston said, the main worry in the black community over mortgage lending was the banks were lagging behind in their lending to minority neighborhoods. He said expressed his concerns about this to Wells Fargo. Smiley, he said, also later raised questions about subprime lending tactics with the bank. “Tavis definitely had some dealings with them on this issue,” Boston said.

Nonetheless, in hindsight and with the collapse of the subprime mortgage market, Boston said he has second thoughts about participating in the seminars.

“Were we probably used? We probably were,” he said. “If I had the chance to do it over again, would I do it in a different manner? Probably.”

“You look back now and you feel for the homeowner who could have qualified for a better mortgage and got the costly type of mortgage. That concerns me a lot, not just for Wells Fargo, but for everybody out there, Citigroup, Countrywide … they were all doing the same events.”

But at the time, Boston said, having a major bank doing outreach in the black community was considered an encouraging development, after so many years of redlining and restricted access to credit. “We all thought at the time that we were doing a positive thing,” he said.

Boston said he quit doing the seminars after his contract ended two years ago. Smiley, he said, continued to work with Wells Fargo, particularly on his annual State of the Black Union symposiums. On his Website, Smiley recently posted a statement regarding Wells Fargo that said, “in this economic climate, we continue to be reminded every day that there is no perfect company.”

Smiley said in the statement that his relationship with Wells began in 2005, as part of the bank’s  “commitment to increase financial literacy in the African American community.” He said that “the partnership with Wells Fargo focused on building personal wealth, which for most Americans begins with buying a house.”

According to the statement, Smiley also has had partnerships with other companies, but has never served as a spokesperson or representative for any of them, including Wells Fargo. The statement also said Wells Fargo will no longer be one of the sponsors of his Black State of the Union event in 2010, although the bank sponsored the event as recently as last spring.

“Given the fact that Wells Fargo has been an industry leader, they have partnered with many African American and Latino national civil rights organizations on various community initiatives,” the statement said.

The Illinois lawsuit against Wells is one of many such actions winding their way through the court system around the country, offering more details of alleged discriminatory tactics by lenders during the height of the subprime boom. As TWI reported last week, housing advocates call these lawsuits the “smoking guns” of the housing crisis, providing what they see as proof that lenders deliberately targeted minorities for high-rate and risky subprime mortgages, while white borrowers with similar incomes and credit scores received lower-cost loans.

In a city of Baltimore lawsuit against Wells, former employees charged that Wells Fargo loan officers referred to minority borrowers as “mud people” and called subprime mortgages “ghetto loans.” But some prominent black bloggers find the “wealth building” seminars just as egregious, and question why Smiley, Boston, and anyone else who participated in them hasn’t been called on further to account for their actions.

“If Tavis Smiley was white, Wells Fargo and ‘Ghetto Loans’ would be front page news,” wrote Genma Stringer Holmes, a Nashville, Tenn., business owner and blogger who has blasted out several posts on the seminars.

Holmes said Smiley should speak out more against discriminatory subprime lending practices – but he hasn’t been forced to, because the black media has been silent on the issue, she said. The scandal that remains is that the ads and seminars targeted the most vulnerable members of black community, according to Holmes. “People who follow Tavis will follow him off a cliff,” Holmes said.

Boston said he still does seminars and presentations pushing wealth building, but he focuses on avoiding foreclosures and helping with loan modifications. He recently wrapped up work on an upcoming show on helping homeowners facing foreclosures, he said.

This story has been updated for clarity.

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Abdullah al-Kidd, a Kansan who converted to Islam in college, was arrested in 2003 after he and his wife became targets of an FBI anti-terrorism investigation involving surveillance of Arab and Muslim men. The FBI never found any evidence against al-Kidd, but believed he might have information that would be useful to another prosecution. Although al-Kidd agreed to cooperate, the FBI detained him for the next 16 days in high-security prisons in Virginia, Oklahoma and Idaho. Strip-searched and shackled, he was kept in a cell that was lit 24 hours a day.

Al-Kidd was finally allowed to leave, but only if he promised to live at his in-laws’ home in Nevada, limit his travel to only four states, report regularly to a probation officer and consent to home visits for more than a year. Fifteen months’ later, he and his wife had separated, and al-Kidd was fired from his job after he was denied a security clearance due to his arrest, he claims. He was also denied a chance to study in Saudi Arabia on a scholarship.

Al-Kidd was never charged with any crime or called as a witness in any trial.

In March 2005, Al-Kidd sued Ashcroft for what he claims was an illegal policy of detaining Muslim men suspected of terrorism as material witnesses even though there was no evidence against them, they’d agreed to cooperate with the government and posed no security risk.

Like other former government officials sued in recent years for promulgating unlawful counter-terrorism policies, Ashcroft claimed he was immune from suit as a government official doing his job. But in this case, the court ruled against him. There was no doubt that it was unconstitutional to arrest a person without probable cause that he committed a crime under the pretext that he may be a witness to one, the court ruled.

“All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.”

Writing for the court, Judge Milan Smith continued, suggesting concerns broader than al-Kidd’s case alone:

Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

Al-Kidd still has to prove the facts of his case, but he’s scored a significant legal victory.

“The court made it very clear today that former Attorney General Ashcroft’s use of the federal material witness law circumvented the Constitution,” said American Civil Liberties Union Immigrants’ Rights Project Deputy Director Lee Gelernt, who argued the appeal. “Regardless of your rank or title, you can’t escape liability if you personally created and oversaw a policy that deliberately violates the law.”

That victory may not translate to many of the other cases involving victims of post-9/11 U.S. government detention policies who were not U.S. citizens, however, or who were detained in prisons abroad. Courts have generally ruled that the rights of non-citizens detained in overseas prisons were not sufficiently clear in the initial years after the September 11, 2001 terrorist attacks to warrant denying government officials immunity from lawsuits, even if the detainees were held for years without charge or trial.

On Wednesday, dozens of American-born children of parents who’ve been deported gathered at a Miami nonprofit organization with activist Nora Sandigo to draw attention to what they say is a deprivation of their rights to live in the United States, because their parents have been deported. Many live in homes without money to pay for school supplies, or are at risk of foreclosure.

Former Sen. Norm Coleman (R-Minn.) has requested permission to use his campaign funds for legal fees relating to a federal investigation of a campaign donor, according to documents from the Federal Election Commission (FEC). Coleman donor Nasser Kazeminy has been accused of ordering $75,000 in payments to Coleman’s wife, Laurie Coleman, in a lawsuit filed in Texas. Coleman is not a defendant in the lawsuit, but he has been forced to respond to certain aspects of the case that involve him. The lawsuit alleges Kazeminy tried to benefit Coleman with the payments.

The scandal had an impact on the Senate race: it broke right before the election, and Coleman accused the Franken campaign of being involved with the timing. But this isn’t, presumably, what Coleman donors thought they were funding.

In my last post, I wrote about how Yaser Hamdi, the former Guantanamo prisoner and U.S. citizen picked up in Afghanistan and held for years without charge, first at Gitmo and then in the United States, promised not to bring any claims against the United States and agreed to give up his U.S. citizenship in order to be released to Saudi Arabia.  Although he never pled guilty to anything, and he consistently denied that he was a member of the Taliban or fighting the United States, Hamdi did sign an agreement saying that he “waives, forfeits, relinquishes and forever discharges” the United States and its agents from any claims of violating U.S. or international law.

After all, as his lawyer at the time, Geremy Kamens, told me earlier today, “when people are incarcerated, they want to get out and they’re willing to give up a lot of things.” Still, the U.S. government never asks ordinary criminal defendants in criminal cases to waive the right to sue for mistreatment, Kamens said, based on his experience as a federal public defender.

Well, in the case of John Walker Lindh, the 20-year-old from affluent Marin County, Calif., the government did just that. In addition to providing for a 20-year prison sentence, the agreement Lindh signed also included the following statement:

The defendant agrees that this agreement puts to rest his claims of mistreatment by the United States military, and all claims of mistreatment are withdrawn. The defendant acknowledges that he was not intentionally mistreated by the U.S. military.

In other words, “say what we tell you to and forgo your right to sue us and we’ll cut you a deal.”

Lindh also reportedly faced restrictions on his ability to speak publicly about his experiences, though those restrictions remain secret.

While 20 years might not seem like such a great deal right now, recall that Lindh was captured in 2001, early in President Bush’s “war on terror”, when the nation was in a panic and the “American Taliban” was being vilified. The United States had charged him in a lengthy 10-count criminal indictment with, among other things, providing material support to terrorists and conspiracy to kill U.S. nationals.

In the end, Lindh pled guilty to one count of supplying services to the Taliban and a charge of carrying weapons while fighting the Northern Alliance. And he waived his right to ever claim that he’d been mistreated.

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CNN reports that U.S. District Court Judge Gerald Bruce Lee rejected CACI’s claims that the company was immune from liability for abuse, war crimes and conspiracy because it was under contract with the federal government.

The four Iraqi detainees in the case, represented by the Center for Constitutional Rights, alleged that interrogators on contract from CACI beat and abused them, and destroyed documents and videotapes of the interrogations to mislead officials about their tactics.

Although 11 U.S. soldiers who worked with CACI at Abu Ghraib were eventually court-martialed for their role in the abuses and implicated company workers in the crimes, none of the contractor’s workers have faced criminal charges.

CACI had claimed, as defense contractors often do, that it was not responsible for its workers’ actions because they were acting under orders of the U.S. military and that the courts lack authority to judge military actions, which are inherently political questions.

The judge disagreed.

“While it is true that the events at Abu Ghraib pose an embarrassment to this country, it is the misconduct alleged and not the litigation surrounding that misconduct that creates the embarrassment,” wrote Judge Lee. “This court finds that the only potential for embarrassment would be if the court declined to hear these claims on political questions grounds. Consequently, the court holds that plaintiffs’ claims pose no political question and are therefore justiciable.”

The four Abu Ghraib detainees were released between 2004 and 2008 and were never charged with any crimes.

The Obama administration is now in the odd position of defending Yoo, who made the legal arguments justifying such extreme interrogation methods as waterboarding, or simulated drowning, a well-known form of torture. Padilla, an American citizen, claims he was subjected to those techniques during his more than three years held in isolation without charge or trial at a U.S. military brig. (He was eventually transferred to civilian custody and tried in federal court, convicted in 2007 on terrorism-related charges.) Represented by a Yale Law School clinic, Padilla and his mother are now suing Yoo for being responsible for the treatment he endured as an “enemy combatant”.

The Times reports that U.S. District Court Judge Jeffrey White in San Francisco, appointed by President George W. Bush, seemed skeptical of the government’s argument that the case should be dismissed because Yoo is immune from suit and his actions could not be directly connected to Padilla’s treatment, noting that Yoo’s 2001 memo for the Office of Legal Counsel deciding that the president can override the Fourth Amendment’s protection against unreasonable searches and seizures was “a pretty scary position.”

Padilla was convicted in 2007 on terrorism-related conspiracy charges. In his lawsuit against Yoo, Padilla claims that the torture memorandums were directly responsible for his detention, interrogation and torture.

Interestingly, Padilla is not seeking large monetary damages for his treatment:  he’s asking for only $1. What he really wants, his lawyers say, is a declaration from the government that his incarceration and harsh treatment were wrong.

“Plaintiffs seek to vindicate their constitutional rights,” the complaint stated, “and ensure that neither Mr. Padilla nor any other person is treated this way in the future.”

Because President Obama has not said whether he would support either prosecutions of Bush officials or a truth commission, and proposals for investigatory commissions  have so far not won a majority of supporters in Congress, such private lawsuits function as an alternative means of getting at the truth of how torture came to be justified as official policy, and of obtaining some acknowledgment of government wrongdoing for the victims.

After Friday’s hearing, one of Padilla’s lawyers, Hope Metcalf, told The Times: “We were very encouraged by the court’s questions.”

As I wrote last week, in a particularly important Freedom of Information Act case, the Justice Department asked for a three-month extension to decide whether it would turn over three particularly critical Office of Legal Counsel memos that the American Civil Liberties Union has been pushing for.  (The memos could help determine whether Bush administration officials broke the law.) Never mind that the FOIA case has been pending for more than five years, and with only three memos involved, it’s unlikely that it would really take the department’s lawyers that long to decide whether they fall within the handful of exceptions allowed by FOIA to prevent the release of government documents.  So Judge Alvin  Hellerstein of the U.S. District Court in New York City, who was obviously annoyed, scheduled a hearing Wednesday to set a date certain for the government to respond.

Whether to avoid a public scolding, or just realizing that it will be hard to defend needing 90 days to review three memos, the Justice Department yesterday agreed to respond within 30 days — a much more reasonable alternative that the ACLU readily agreed to.

So now, the Department of Justice will have to decide by March 16 whether, in keeping with Obama’s promises and in this new spirit of cooperation, it will turn over those OLC memos, which reportedly authorized some of the Bush administration’s most brutal interrogation methods.  Then again, the Obama Justice Department is still staffed largely by Bush-era career staff holdovers.  And a cynic might read today’s move as their conclusion that 30 days was all they needed to reinforce their fight to keep hiding the evidence.

The big picture: the percentage of Minnesotans who favor a legal challenge has jumped from 44 percent last month to 55 percent this month. It’s obvious why. The challenge has left the realm of theory and become Coleman’s last-ditch chance for victory. Now a coalition of some independents and almost every Republican supports it.

But the news is, on balance, better for Al Franken. As Josh Kraushaar notes (in a post that, curiously, treats Franken’s and Coleman’s low approval ratings as the big news), a Rasmussen poll from last month showed 67 percent of voters thought Coleman had won/would win and only 16 percent thought Franken would be the ultimate victor. Now 44 percent of voters want Coleman to concede.

Sub-news: Minnesota’s Democratic Secretary of State Mark Ritchie, who’s been turned into a punching bag on Fox News and talk radio, has experienced a slight popularity dip but maintains a 56 percent approval rating. It’s the same story as the Coleman/Franken results—Republicans have hardened their partisan assessment of Ritchie.