The case against John Yoo, the Bush Administration Justice Department attorney who crafted the “torture memos”, was thrown out of the ninth Circuit Court. In my opinion, this deserves more discussion.
The Ninth Circuit today reversed the district court’s ruling in Padilla v. Yoo, ordering that former “enemy combatant” Jose Padilla’s civil damages suit against John Yoo be dismissed on qualified immunity grounds. The dismissal represents the latest refusal of a federal court to provide a remedy for abuses committed during the war on terrorism.
First, the panel ruled that because it was not clearly established that an enemy combatant possessed the same rights as a convicted prisoner, Yoo cannot be held liable for the systematic program of abusive interrogation to which Padilla was subjected–a program designed to render Padilla helpless through interrogation under threat of torture, stress positions, sleep and sensory deprivation, extreme isolation, and incommunicado detention for almost two years.
Second, the panel ruled that, even though the unconstitutionality of torturing a U.S. citizen was “beyond debate” during the period in question (from 2001-2003), it was not clearly established that the treatment Padilla was subject to amounted to torture.Both rulings are suspect. On the first point, the thrust of Padilla’s complaint is that the government designated Padilla an enemy combatant precisely to avoid the constitutional protections he would have been afforded as a criminal defendant. But, even putting this motive aside, the Convention against Torture (CAT) clearly prohibited cruel, inhuman, and degrading treatment (CIDT) at the time of Padilla’s interrogations. In ratifying CAT, the United States equated CIDT with the “shocks the conscience” standard under the Due Process Clause of the Fifth Amendment. Padilla, a U.S. citizen held in the United States, was indisputably protected by the Fifth Amendment. Yet, the Ninth Circuit failed to recognize how Padilla’s harsh treatment–even if it did not cross the line into torture–could constitute cruel, inhuman, or degrading treatment that was clearly prohibited at the time. (See Steve Vladeck’s discussion of this issue here).On the second point, the Ninth Circuit’s ruling suffers from a troubling circularity.
The “debate” over torture, such as it was at the time, was largely manufactured by John Yoo and others precisely to engage in conduct that the law prohibited. The court thus takes what might be described as part of a conspiracy to commit torture as the reason to insulate those responsible from liability. The appeals court, at least, observes that recent judicial decisions suggest that the treatment to which Padilla was subject does constitute torture (One of the cases it cites—Vance v. Rumsfeld—is being reheard by the Seventh Circuit en banc.). (more…)