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Thursday, May 03, 2012

Vladeck on the new Padilla decision

I have not yet had a chance to really get into yesterday's decision in Padilloa v. Yoo, in which the Ninth Circuit held that John Yoo was protected by qualified immunity from liability over his role in Padilla's mistreatment. Steve has a post at Lawfare discussing the problems with the court's analysis over whether it was clearly established that the mistreatment Padilla suffered was torture or "merely" cruel, inhumane, or degrading treatment (see also Jonathan Hafetz on the subject).

Here's my question: Why does it matter how we label the treatment? The question should be whether it was clearly established from 2001-03 that the conduct to which Padilla was subject shocked the conscience so as to violate substantive due process. What conclusory characterization--torture, CIDT, or ishkebible-- is besides the point of whether the Fifth Amendment was, in fact, violated. The focus on labels and not on behvaior allows the court to elide the real question.

Posted by Howard Wasserman on May 3, 2012 at 11:01 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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Howard -- As my post suggests, I totally agree with you. The Ninth Circuit opinion proceeds on the undefended and unsubstantiated assumption that it wasn't clearly established between 2001 and 2003 that CIDT, in contrast to torture, "shocks the conscience." And if that wasn't clear, and if it wasn't clear whether Padilla's alleged mistreatment was CIDT or torture, then that's the ballgame.

Of course, my own view is that CIDT, like torture, also "shocks the conscience," and so this is a distinction without a difference in this context. The Court of Appeals clearly disagrees--or at least disagrees that it was clear--but never illuminates (let alone proves) the lack of clarity on this critical point during the relevant time period...


Posted by: Steve Vladeck | May 3, 2012 3:07:53 PM

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