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On Wednesday, the Ninth Circuit Court of Appeals unanimously dismissed the case against former Bush administration lawyer John Yoo, filed by convicted terrorist Jose Padilla. “We agree with the plaintiffs that the unconstitutionality of torturing a U.S. citizen was ‘beyond debate’ by 2001,” wrote Judge Raymond Fisher for the unanimous three-judge panel. “Yoo is entitled to qualified immunity, however, because it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.” Thus, Yoo cannot be held personally liable for what Padilla characterized as “gross physical and psychological abuse” he allegedly suffered during three-plus years of military detention prior to his conviction on other terror charges in 2007. “I am glad that the Ninth Circuit agrees that Padilla and other convicted terrorists shouldn’t be allowed to use our own legal system to continue fighting against the United States,” Yoo said.
Padilla was one of the first Americans to be designated an “enemy combatant” after he was initially detained at Chicago’s O’Hare Airport in 2002. The arrest was for his connection with an “unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb,” according to then-U.S. Attorney General John Ashcroft. He was held at a military brig in isolation for more than three years, and then transferred to civilian custody. In 2007, he was convicted of “conspiring to murder, kidnap and maim people overseas.” He is currently serving a 17-year prison sentence.
Padilla’s lawsuit against Yoo focused on his time in the brig. He claims he was subjected to a wide-range of harsh interrogation techniques that amounted to torture. These techniques included prolonged isolation, light deprivation, extreme variations in temperature, loud noises, the administration of psychotropic drugs, deprivation of solid food, slapping, sleep deprivation, prolonged shackling, and threats to the detainee’s family. Padilla’s suit alleged that Yoo’s “torture memos” led to the “illegal treatment” he received.
The memos to which Padilla was referring included one written in 2001 advising that the military could use “any means necessary” to hold terror suspects, and one written in 2002 to then-White House Counsel Alberto Gonzales defining torture as that which caused pain levels equivalent to “organ failure, impairment of bodily function or even death.” Yoo was also the principle author of the 2002 memo that authorized the use of “waterboarding,” which simulates drowning.
Padilla’s case had been allowed to proceed after a 2009 ruling by U.S. District Judge Jeffrey White of San Francisco, who based his decision in part on Hamdi v. Rumsfeld, a 2004 U.S. Supreme Court ruling that noted the “state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” White further contended that Yoo was the “alleged architect of the government policy” on enemy combatants, and that government lawyers could be held responsible for the “foreseeable consequences of their acts.”
The Ninth Circuit didn’t buy it, noting that the law defining torture and the treatment of enemy combatants was unsettled in the years immediately following the 9-11 attacks. “There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques,” Judge Fisher wrote. “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.” In reversing White, the Ninth Circuit also reinforced the definition of enemy combatant. It noted that the trial court had “erred” when it concluded that Padilla and other suspected terrorists held by the military had the same rights as ordinary prison inmates.
A 1982 ruling by the Supreme Court may have been part of the mix. It established that government officials cannot be held legally responsible for violating individual rights unless those rights were clearly established at the time. A 2011 Supreme Court ruling was definitely part of the mix. In Ashcroft v. al-Kidd, the Court concluded that former U.S. Attorney General John Ashcroft could not be sued for authorizing the detention of Muslim-Americans for several weeks immediately following the 9-11 attacks. “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate,” Justice Antonin Scalia wrote for a 5-4 majority. According to Judge Fisher, Ashcroft v. al-Kidd “foreclosed” Padilla’s argument.
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