Ninth Circuit dismisses torture lawsuit against John Yoo
The Ninth Circuit Court of Appeals dismissed a lawsuit against former Justice Department official John Yoo, who authored the infamous “torture memos” used by the Bush administration to legally justify the indefinite detention and torture of terrorism suspects, including U.S. citizens.
The civil suit was brought by Jose Padilla, who accused Yoo of abusing his position at the Justice Department’s Office of Legal Counsel to “to cause Padilla’s allegedly unlawful military detention and interrogation.” Padilla sought $1 in damages and a declaration that his “treatment violated the Constitution.”
“Our conclusion that Yoo is entitled to qualified immunity does not address the propriety of Yoo’s performance of his duties at [the Office of Legal Counsel],” the court wrote in Padilla v. Yoo. The court did acknowledge that a 2009 Justice Department investigation found that “Yoo knowingly failed to provided a thorough, objective, and candid interpretation of the law” when he drafted the Bybee Memo, which justified “outright torture” in violation of the War Crimes Act, the Geneva Convention, and the Convention Against Torture.
Padilla, an American citizen, was designated an “enemy combatant” by President George W. Bush in 2002 largely due to the legal advice provided by Yoo. The”enemy combatant” designation allowed Bush to order Padilla to be held in military custody without charge or trial.
Read more: Timeline of Jose Padilla v. John Yoo
While in military detention between 2002 and 2006, Padilla was allegedly subjected to the enhanced interrogation techniques that were deemed legal in Yoo’s torture memos. The abuse Padilla suffered included the use of “stress positions” to cause extreme physical pain, sleep deprivation, exposure to extreme hot or cold temperatures, deprivation of light for long periods, extreme isolation from human contact, forced administration of psychotropic (mind-altering) drugs that could cause hallucinations, “exposure to noxious fumes that cause pain to eyes and nose”, and interrogation under the threat of torture and death. In addition, Padilla was denied any contact with his attorney or his family while in military detention.
At the time, Bush cited allegations that Padilla was involved in an Al Qaeda plot to detonate radioactive “dirty” bombs in the United States to justify the indefinite military detention of an American citizen. However, Padilla was never charged for those crimes. Instead, Padilla was convicted in 2007 of unrelated charges – including conspiracy and aiding terrorists – and was sentenced to 17 years in prison.
Ninth Circuit’s decision in Padilla v. Yoo
The Ninth Circuit Court dismissed Padilla’s lawsuit, ruling that Yoo is entitled to qualified immunity that protects government officials from civil liabilities for actions that violate a person’s constitutional rights. “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions,” wrote Justice Antonin Scalia in Ashcroft v. al-Kidd. “When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.'”
In order to win the lawsuit, Padilla had to prove “beyond debate” that Yoo would have reasonably understood at the time that his actions violated “clearly established law” that prohibited the torture and indefinite detention of an American citizen.
Although the court conceded that it is “beyond debate” that torturing an American citizen is unconstitutional, the justices maintained that U.S. law between 2001 and 2003 did not clearly establish that “the treatment to which Padilla says he was subjected amounted to torture.” (Under the 2002 Bybee memo purportedly drafted by Yoo, only techniques that rises “to the level of death, organ failure, or the permanent impairment of a significant body function” would be considered torture.)
“There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques. In light of that debate…we cannot say that any reasonable official in 2001-03 would have known that the specific interrogation techniques allegedly employed against Padilla, however appalling, necessarily amounted to torture,” the court concluded.
The court also ruled that at the time of Padilla’s detention it was not clear whether a U.S. citizen detained as an enemy combatant had the right to an attorney to challenge the “combatant” classification and the right to due process and other legal protections afforded to criminal suspects and convicted prisoners.
Those questions were resolved in 2004 in Hamdi v. Rumsfeld, in which the Supreme Court ruled that “a citizen detained as an enemy combatant retains a fundamental ‘right to be free from involuntary confinement by his own government without due process of law'” and “‘unquestionably has the right to access to counsel” to challenge his combatant classification and rebut the government’s allegations. In addition, the Supreme Court ruled in Hamdi that enemy combatants should be “treated humanely” and their detention should be “devoid of all penal character.”
However, the court pointed out that the Hamdi decision was issued the year after Yoo’s tenure at the Justice Department ended and thus “could not have placed Yoo on clear notice of Padilla’s constitutional rights in 2001-03.”
Padilla also filed a similar lawsuit against former Secretary of Defense Donald Rumsfeld, former Attorney general John Ashcroft, and other high-ranking Bush administration officials. The lawsuit was dismissed by the Fourth Circuit Court of Appeals in February.
- WhatTheFolly.com: Timeline of Jose Padilla v. John Yoo
- Ninth Circuit Court of Appeals: Padilla v. Yoo opinion (PDF)
- Department of Justice: Jose Padilla charged with conspiracy to murder individuals overseas, providing material support to terrorists (PDF)
- Department of Justice: Office of Professional Responsibility investigation into the Office of Legal Counsel’s memoranda concerning issues relating to the Central Intelligence Agency’s use of “enhanced interrogation techniques” on suspected terrorists – Part 1 (PDF)
- Department of Justice: Office of Professional Responsibility investigation into the Office of Legal Counsel’s memoranda concerning issues relating to the Central Intelligence Agency’s use of “enhanced interrogation techniques” on suspected terrorists – Part 2 (PDF)
- Department of Justice: Office of Professional Responsibility investigation into the Office of Legal Counsel’s memoranda concerning issues relating to the Central Intelligence Agency’s use of “enhanced interrogation techniques” on suspected terrorists – Part 3 (PDF)
- Department of Justice: Office of Professional Responsibility investigation into the Office of Legal Counsel’s memoranda concerning issues relating to the Central Intelligence Agency’s use of “enhanced interrogation techniques” on suspected terrorists – Part 4 (PDF)
- Supreme Court: Ashcroft v. al-Kidd opinion (PDF)
- Supreme Courg: Hamdi v. Rumsfeld (PDF)
- Fourth Circuit Court of Appeals: Padilla v. Rumsfeld et al (PDF)
- U.C. Berkeley School fo Law: John Choon Yoo
- Department of Justice: Jose Padilla and Co-Defendants Convicted of Conspiracy to Murder Individuals Overseas, Providing Material Support to Terrorists
- Department of Justice: Jose Padilla and Co-defendants Sentenced on Terrorism Charges
- Department of Justice: Office of Legal Counsel