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Thursday, May 03, 2012

Thoughts on Padilla v. Yoo

Many thanks to Dan for inviting me back to contribute to this wonderful community.  I wish that my first post this month would be on the more positive end of the spectrum.  As noted by others, yesterday a three-judge panel of the Ninth Circuit ruled against Jose Padilla, a U.S. citizen and “enemy combatant,” who alleged that he was subjected to unlawful detention and abusive interrogation that were both justified by OLC legal memoranda prepared in 2001-2003 by John Yoo.  In particular, the panel held that “Yoo is entitled to qualified immunity… because it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.”  In light of the Supreme Court’s decision in al-Kidd, the panel’s holding is not surprising, though remains disappointing to me nonetheless.

I drafted an amicus brief in this case on behalf of legal ethics scholars in support of Padilla.  Among Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney.   The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

With that background in mind, I thought I’d share some reflections on the decision given my very modest involvement in the case. 

First, I share the concern, expressed by Steve and Howard, that the panel should not have focused on whether the interrogation methods allegedly imposed on Padilla satisfied, in the words of the panel, the technical “definition of torture” as that definition was understood from 2001-2003.  The operative question, instead, is whether the imposition of those methods, accepting Padilla’s version as true for purposes of the motion to dismiss, “shocks the conscience” in violation of the Fifth Amendment.  The question answered by the panel -- “whether it was not clearly established at that time that the treatment Padilla alleges he was subjected to amounted to torture” -- not only misses the mark, but is reminiscent of the very “categorical” and “formal” analysis that the Supreme Court rejected in Boumediene.

Second, even if the proper focus was "torture," the panel's decision is problematic. In examining the particulars of Padilla’s treatment, the panel suggested, based on several pre-2003 international, D.C. Circuit and Ninth Circuit opinions, that treatment characterized by its “intensity and cruelty,” “severe pain or suffering,” “actions… intended… to inflict severe physical pain,” or “extreme and almost indescribable pain,” may constitute “torture.”  The panel found, however, that Padilla’s allegations -- which resulted in “chronic, extreme pain” and “severe mental and physical harm as a result of the forty-four months of… interrogation” -- did not rise to this level.  This is rather surprising given the examples referenced by the panel and the fact that the allegations are to be taken as true at this stage of the litigation.  The panel discounted Padilla’s allegation that he suffered from “severe mental and physical harm” as “conclusory,” an assessment that calls to mind the Supreme Court’s reaction to the allegations in Iqbal.   To the extent that the allegations were conclusory, the panel could have remanded the case back to the district court to allow Padilla to opportunity to amplify his complaint with greater specificity, as the D.C. Circuit did in the case cited by the panel.

Third, I was taken aback by the post-decision statement by Miguel Estrada, Yoo’s attorney, in which he said that Padilla, having lost, will now “need to find a new hobby for his remaining time in prison.”  This comment struck me as particularly harsh or "unsportsmanlike," to borrow a hockey term.  One can contrast Estrada’s reaction to that of Neal Katyal, who, after being successful in Hamdan, said:

I don't think that this [decision] is a rebuke to the Bush administration per se…. But, what's great about America, it seems to me, is that we have a court system... that checks the President and allows this guy -- a fourth-grade educated Yemini accused of conspiring with one of the worst individuals on the planet, Osama bin Laden -- ... to sue the... world's highest, most powerful official, the President of the United States, and says 'you're doing something illegal to me, you're violating your own basic laws.'

What other nation on earth allows people to do that? It's a great thing about America. We should be celebrating it, I think, and I think the administration should celebrate it as well because it says that we're different. And, if we're going to win the war on terror, we are going to win it through our soft power, we're going to win it through saying to the world that we actually have a better model than you because in your countries you settle these things through force and fiat, and here we settle them through law, we settle them through law.

Katyal’s statements prove it is possible to be gracious in legal victory, even in the contentious and sensitive area of post-9/11 national security.  (I realize that Katyal was challenging the government, whereas Estrada is defending a government official.  But I don’t think that distinction is significant as it pertains here.) 

Thanks again for having me back.

UPDATE: Yoo's Wall Street Journal op-ed on the case is available here.

Posted by Dawinder "Dave" S. Sidhu on May 3, 2012 at 08:31 PM in Constitutional thoughts | Permalink


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David Cole (Georgetown) discusses the decision on the blog of the New York Review of Books. He writes, in part:

"While there are both historical precedents and good reasons in certain situations for trying a person accused of a war crime in a military tribunal rather than a civilian court (as long as the trials are fundamentally fair), there are no precedents, and no reasons, for abusing a detainee in the way Padilla alleges he was mistreated, regardless of his status. Absent such a reason, never articulated by the court, it should have been clearly established that the federal government could not constitutionally abuse Padilla in the way he alleges it did."

The full essay is available here:

Posted by: Dawinder S. Sidhu | May 8, 2012 4:18:20 PM

Typically an enemy soldier has combatant immunity, and once a US citizen enlists in a foreign army he is stuck and has to fight the enemies of that army even if it subsequently decides to attack the US. During WWII the US did not charge US citizens who joined Axis armies prior to Pearl Harbor with any crime. However, after enlisting in the army of Afghanistan, Padilla was recruited in early 2001 by Mohammed Atef for an attack on the US, and eventually he volunteered for the mission. Volunteering for a mission you were not ordered to execute makes it Treason. The US has hundreds of hours of videotaped interrogation where Padilla admits to Treason, but none of it can be used. According to the constitution, a confession to Treason has to be made in open court, and so far Padilla has never taken the stand.

However, in this litigation Padilla not only exposes himself to examination in open court, but his arguments place the question of Treason front and center. I have never heard of a lawyer unsatisfied that his client was never charged with a serious felony, and then placing his client in the one situation where he can provide the exact evidence needed to charge and convict him. A defense attorney knows not to put his client on the stand, but in a civil case for $1 damages Padilla cannot avoid testifying without defaulting the case.

So this case was never plausibly going to get even as far as discovery. No matter how confident you are that Padilla has a case, basic prudence would require any attorney to find some excuse to stop the case before Padilla takes the stand and incriminates himself. So what was the purpose of this case and how far did they actually intend to take it.

Posted by: Howard Gilbert | May 5, 2012 11:28:46 PM

Orin, many thanks for your comments, and I apologize for not responding sooner, I have been traveling. First, it may very well be that the reaction to the ruling was prompted by Yoo, and not by Estrada. I don't think, though, that the origins of the reaction leave it any less amenable to criticism or the specific observation that the "high road" was available, but not taken. It is understandable for Yoo to feel annoyed, but to label the suit as "baseless" and tantamount to "harassment" is hard to square with the fact that a district court judge ruled for Padilla. Moreover, the Ninth Circuit panel stated that it felt "compelled" to rule the way it did because of al-Kidd, and that its ruling was "dictated" by al-Kidd, which suggests maybe (and this is a big maybe) the panel would have come out differently in the absence of al-Kidd.

Second, the national security context would be relevant to a qualified immunity determination, though my understanding is that direct precedent is not required for there to be a finding that qualified immunity does not exist (otherwise detainees would be in a very precarious if not hopeless position). As to the cases referenced by the panel, it seems to me that Padilla's allegations, taken as true, are consistent with the pre-2003 decisions regarding what constitutes "torture." And while the panel focused on Quirin and Hamdi, which concerned the rights of citizens, Hamdan, which addressed the rights of enemy combatants, was left out of the mix.

These are interesting questions, which may be examined or resolved if Padilla pursues an en banc appeal or an appeal to the Supreme Court.

As an aside, I have utmost respect for Orin and hope that others who comment on this post exhibit similar civility towards him, even if (especially if?) one disagrees with his substantive points.

Posted by: Dawinder S. Sidhu | May 4, 2012 6:52:26 PM

Howard -- I did not mean to suggest that Jim was making a descriptive claim. I think he was simply trying to get advocates/courts to think about the issue. Most courts have not devoted much attention to it and have simply assumed that QI is available against nominal damages claims.

And although I think CA9 got it wrong in terms of its outcome, I think Orin and CA9 are right to think that the national security context is relevant at the QI stage. The question at QI is whether a reasonable officer would have believed his actions violated clearly established law. I do not think one can answer this question without taking into account the context -- QI decisions in Fourth Amendment cases take account of factual context all the time; same for Eighth Amendment claims. Now whether CA9 came to the right conclusion about how the national security context affects the nature of the right at stake is another question.

Posted by: Alex Reinert | May 4, 2012 12:47:40 PM

I think that Orin Kerr is right to focus on what tone the client prefers for public comments by his/her lawyer. John Yoo has an article on WSJ, but most of it was behind a paywall. The opening paragraph suggests that Yoo wants to go on the offensive.

I also wanted to recommend the amicus brief for those who are interested in the law of lawyering and legal ethics.

Posted by: John Steele | May 4, 2012 12:34:42 PM

Alex: I don't think Jim was arguing descriptively in that paper. It certainly never has been the law anywhere that claiming only nominal damages avoiding Q/I.

Orin: I believe the S/T/C standard will take into account the national security context. But I am not sure that the clearly established prong of the Q/I analysis is the time for making that inquiry. It seems more of a merits issue, which the 9th Circuit skipped over.

Posted by: Howard Wasserman | May 4, 2012 12:27:56 PM

Estrada's comments don't bother me that much, except to the extent that they invoke a tired cliche about prison litigation. Padilla is confined in Florence's ADX -- almost total isolation, "recreation" in a concrete pit one hour a day (at best), four inch wide window, etc. I would be looking for distractions too.

More troubling to me is the court's holding that, although it was clearly established that the US could not torture its own citizens, it was not clearly established that Padilla's treatment was torture. To the extent that the court's conclusion rested on a characterization of Padilla's allegations of pain and suffering as "conclusory," I think it is in conflict with Erickson v. Pardus.

There also is another interesting issue raised by the case, which is not addressed by the panel (it does not appear to have been raised below or by any briefing on appeal, either). Jim Pfander argues in an essay (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1795341) that litigants should be able to avoid qualified immunity (and therefore avoid the problems that Steve identifies in his Lawfare post) by seeking only nominal damages for constitutional violations. Padilla only sought nominal damages in his complaint (or at least the most recent version I could find). So I suppose this argument could have been raised, though I am less optimistic than Jim is about how successful it could be.

Posted by: Alex Reinert | May 4, 2012 11:15:21 AM

Prof. Kerr is one of those reasonable conservatives who liberals appeal to at times while other times they are pissed off by his opinions.

Posted by: Joe | May 4, 2012 10:20:20 AM

Yo Orin Kerr,

It seems pretty obvious that you're a neo-con.

Do you really think we didn't torture these guys? I agree they are terrorists but look at what we did to them:

threatening with: power drills, death, rape, rape of family members
beatings (facial slap, wall throws), dietary manipulation, food deprivation
forcing into confinement boxes chained into stress positions (this is just some of them)
forced nudity and wearing of diapers

Does that sound like America?

Come on Kerr. You seem like a smart guy how can you be so wrong on this?

Posted by: Brendan Gupta | May 4, 2012 8:35:39 AM

Great article. Neal Katyal is a great lawyer, why isn't he solicitor general. We probably could have used him for healthcare too.

It's so obvious we tortured, what's wrong with these judges? You can watch prisoners AND guards talk about their involvement in torture. The informations out (the memos Obama released). Why has there been no steps forward on shedding some light on the American torture issue?

Posted by: Brendan Gupta | May 4, 2012 8:29:27 AM

Doesn't the graciousness of the lawyer's response depend on the client's preferences? For all we know, John Yoo does not have a gracious attitude towards Padilla's lawsuit.

Also, doesn't the application of the shocks the conscience test depend on how you think that test applies in the context of terrorist detentions, an issue on which as far as I know there are no precedents? Or is your thinking that it is clearly established that the same test applied in the context of routine criminal investigations also applies in the context of terrorist detention?

Posted by: Orin Kerr | May 3, 2012 10:07:43 PM

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