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.