Wednesday, May 2, 2012

Yoo Gets Qualified Immunity, Ninth Circuit Rules

The Ninth Circuit ruled today in Padilla v. Yoo that former Office of Legal Counsel attorney John Yoo is entitled to qualified immunity from a civil suit brought by Jose Padilla and his mother Estela Lebron for constitutional violations and torture while Padilla was detained as an enemy combatant.

The ruling means that the case will be dismissed, unless Padilla and Lebron appeal to the full Ninth Circuit or to the Supreme Court--and they agree to hear the case.  The ruling reverses the lower court ruling in the case and aligns with the recent Fourth Circuit ruling dismissing a similar case (but for different reasons, discussed below).

The three-judge panel ruled unanimously that at the time of Padilla's detention it was not clearly established that his treatment violated his constitutional rights, and that it was not clearly established that his treatment amounted to torture. 

As to constitutional rights, the court said that the outcome was dictated by the Supreme Court's ruling in Ashcroft v. al-Kidd (2011):

Significant here, under the second prong, a "Government official's conduct violates clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" . . .  "We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate."  The Court emphasized that "[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions" and admonished us "not to define clearly established law at a high level of generality."

Op. at 4524 (quoting Anderson v. Creighton (1987)).  The court said that there was no judicial precedent squarely on point, and Padilla's argument--that a reasonable official would have known that he was entitled to the same constitutional protections as an ordinary prisoner or a suspect--defined the clearly establish right at too high a level of generality, in violation of al-Kidd.

As to torture, the court said that it wasn't clearly established at the time of Padilla's detention that his allegations rose to the level of torture (although it was clearly established that a U.S. citizen in military custody could not be tortured).  The court surveyed international and domestic cases on torture and concluded that Padilla's allegations didn't obviously amount to torture. 

The ruling aligns with the recent Fourth Circuit ruling in essentially the same case, although for different reasons.  The Fourth Circuit ruled in Lebron v. Rumsfeld that special factors counseled against the case and that Padilla had other avenues of relief (habeas), thus defeating Lebron's Bivens claim.


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Although the Fourth Circuit and the Ninth Circuit both dismissed nearly identical cases against Rumsfeld and Yoo, they interpreted the claims differently and therefore decided the case based on different principles. In both cases Padilla presented a set of claims. What the commander of the brig identified as the annual Flu shot given to everyone at the facility was asserted to be a truth drug or hallucinogen. The occasional stink from a nearby factory that everyone on the naval base put up with was described as "noxious fumes" that the government intentionally introduced into Padilla's cell. There were also some plausible complaints about a bed without a mattress and leaving the lights on overnight when Padilla wanted to sleep.

The Fourth Circuit examined the claims and decided that they did not amount to "torture", so it decided the case as if Padilla had never claimed torture but only claimed conditions that were unconstitutionally harsh. As a result, it rejected the case because as was expressed in the Chappel decision, a soldier (even an Afghan army soldier like Padilla after he has surrendered to the US and is being held as a prisoner of war) cannot use a Bivens action against higher ranking US officers to complain about the conditions under which he serves.

The Ninth Circuit accepted that "torture" was really part of the complaint, and that torture had it occurred would have been unconstitutional. Instead of deciding that the grab bag of complaints (flu shot, industrial stink, no mattress) did not add up to torture, they seized on a separate aspect of Bivens and ruled that these allegations were not clearly known to constitute torture in a way where Yoo knew or should have known that they were unconstitutional.

So what was basically the same complaint was interpreted by the two circuits to fail for two different ways. The Fourth Circuit decided torture was not really being alleged, and then found that a soldier cannot use Bivens against superior officers to claim that simple harsh conditions of service were unconstitutional. The Ninth Circuit decided that torture was being alleged, but then set of allegations in the complaint fell sufficiently short of obviously being torture that they did not meet the Bivens requirement of being clearly known to be unconstitutional at the time.

Posted by: Howard Gilbert | May 2, 2012 8:29:33 PM

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