John Yoo granted legal immunity (FINAL UPDATE)
on May 2, 2012 at 2:43 pm
Final update: 4:30 p.m.
John Yoo, a former top Justice Department official and a key legal adviser on “harsh interrogation” techniques as a proper tool in the “war on terrorism,” gained legal immunity on Wednesday as the Ninth Circuit Court turned aside the torture claims of a U.S. citizen, Jose Padilla. In a 35-page opinion, the Circuit Court said it was not clear in 2001-2003, when Yoo was giving his advice, that what Padilla said happened to him did satisfy the legal definition of torture.
If the decision withstands a likely appeal to the Supreme Court, it may help insulate virtually all high officials from lawsuits claiming that they had a role in ordering or carrying out methods of detention or interrogation that cause pain and suffering. That’s because the government has insisted that it no longer uses the techniques approved during the George W. Bush Administration, so the timeline discussed by the Ninth Circuit would appear to rule out claims based on prior years’ actions. Moreover, the Circuit Court even commented that it is still not clear, as a legal or constitutional matter, that citizens detained in the status of enemies are protected against such techniques.
The Ninth Circuit panel relied in part on reasoning used by the Fourth Circuit Court in denying Padilla a right to sue other government officials over his treatment as an enemy combatant. Padilla has asked the Supreme Court to review that ruling (Lebron, et al., v. Rumsfeld, et al., docket 11-1277; a post discussing that appeal is here). In addition, the Circuit Court said its decision was required by a Supreme Court ruling last year in Ashcroft v. al-Kidd, barring a constitutional lawsuit against former Attorney General John Ashcroft over the roundup of terrorism suspects after the September 11 terrorist attacks.
This is the way the Circuit Court summed up its conclusions establishing immunity for John Yoo: “Although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.” In addition, the opinion said that it was not beyond debate in those years that “a suspected terrorist designated an enemy combatant” and detained by presidential order was entitled to the same constitutional protection as “an ordinary convicted prisoner or accused criminal.”
Under Supreme Court precedent, a government official is immune to lawsuits based upon alleged constitutional violations if the right claimed was not “clearly established,” by Supreme Court ruling, at the time of the challenged incident. When such an official gains immunity, it is called “qualified immunity” because it falls short of the kind of total immunity that an official has simply because of the nature of the position held — such as a judge or prosecutor. Immunity of the kind given to Yoo is said to be “qualified” because it only exists if the right claimed to have been violated was not clearly established at the time of the incident.
Padilla and his mother, Estela Lebron, have together pursued their claims against Yoo, former Defense Secretary Donald Rumsfeld, and other civilian and military officials, on the theory that those officials were responsible for his being seized, designated an enemy combatant, and held under harsh conditions while being interrogated in a military jail in Charleston, S.C., for more than four years. A federal judge in San Francisco, District Judge Jeffrey S. White, had ruled that Padilla’s lawsuit against Yoo could go forward on at least some of his claims that Yoo wrote legal memos and otherwise gave advice providing legal clearance for what Padilla insisted was torture.
The focus of the Padilla lawsuit against Yoo was a series of 11 memos that he either wrote or allegedly drafted, between October 2001 and March 2003, providing legal and policy guidance on the treatment of persons captured and held as terrorist suspects. Perhaps the best known of those memos, to the general public, is one that Yoo wrote in August 2003, arguing that interrogation techniques do not amount to torture unless the technique caused damage that rose “to the level of death, organ failure, or the permanent impairment of a significant body function.”
The Ninth Circuit did not find that Padilla and his mother had proved any of the facts they claimed, but it proceeded on the assumption that they were true merely for the sake of reaching the immunity issue; it granted immunity even if the facts could be proven to be true.
In taking his plea for legal immunity to the Circuit Court, Yoo (who is now a law professor in California) made three arguments: that Padilla and his mother had no legal right to sue him personally for a claimed constitutional violation, that they had not shown that he was personally responsible for what had happened to him, and that they had not shown that any right Yoo supposedly violated had existed at the time. The Circuit Court accepted the third of those arguments, and did not rule on the other two.
The Circuit Court noted that the District judge, in clearing the Padilla lawsuit to proceed despite the claim of immunity, had ruled that a U.S. citizen held by the military as an enemy combatant must have at least the same legal rights as would any other prison inmate. But the Circuit Court disagreed, concluding that it was not clear in 2001-2003 — or is not even clear yet — that such an individual did have the same rights as an ordinary prison inmate or accused criminal.
The Circuit panel reviewed a number of other courts’ rulings in cases claiming torture, and found that none of them established that the treatment that Padilla claimed did amount to torture in a legal sense. Even now, the opinion remarked, “the degree to which citizens detained as enemy combatants must be afforded the constitutional protections granted other detainees remains unsettled, because the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting.”
On the final page of its opinion, the Circuit Court said that its conclusion that Yoo was entitled to qualified immunity “does not address the propriety of Yoo’s performance” as high-level Justice Department official. It cited complaints filed in amicus briefs in the case that Yoo had acted unethically and violated professional standards. In an accompanying footnote, the Circuit Court called attention to two Justice Department reports criticizing Yoo’s performance.
The panel ruling was written by Circuit Judge Raymond C. Fisher and joined by Circuit Judge N. Randy Smith and District Judge Rebecca R. Pallmeyer, sitting on assignment from her regular post in Chicago.
Padilla and his mother are free to ask the full en banc Circuit Court to consider the case, and could go on to the Supreme Court. Given how energetically their lawyers have pursued their claims, it does seem likely that this case, like their claim against high military officials, will be taken to the Supreme Court. The Justices would have discretion whether or not to consider it, of course.
Padilla is now in federal prison in Colorado after being convicted of terrorism actions. He is facing resentencing after a federal appeals court found his initial sentence too lenient.