an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Ninth Circuit’s Dismissal in Padilla: The Accountability Gap Widens
The Ninth Circuit today reversed the district court’s ruling in Padilla v. Yoo, ordering that former “enemy combatant” Jose Padilla’s civil damages suit against John Yoo be dismissed on qualified immunity grounds. The dismissal represents the latest refusal of a federal court to provide a remedy for abuses committed during the war on terrorism.
First, the panel ruled that because it was not clearly established that an enemy combatant possessed the same rights as a convicted prisoner, Yoo cannot be held liable for the systematic program of abusive interrogation to which Padilla was subjected--a program designed to render Padilla helpless through interrogation under threat of torture, stress positions, sleep and sensory deprivation, extreme isolation, and incommunicado detention for almost two years.
Second, the panel ruled that, even though the unconstitutionality of torturing a U.S. citizen was “beyond debate” during the period in question (from 2001-2003), it was not clearly established that the treatment Padilla was subject to amounted to torture.Both rulings are suspect. On the first point, the thrust of Padilla’s complaint is that the government designated Padilla an enemy combatant precisely to avoid the constitutional protections he would have been afforded as a criminal defendant. But, even putting this motive aside, the Convention against Torture (CAT) clearly prohibited cruel, inhuman, and degrading treatment (CIDT) at the time of Padilla’s interrogations. In ratifying CAT, the United States equated CIDT with the “shocks the conscience” standard under the Due Process Clause of the Fifth Amendment. Padilla, a U.S. citizen held in the United States, was indisputably protected by the Fifth Amendment. Yet, the Ninth Circuit failed to recognize how Padilla’s harsh treatment--even if it did not cross the line into torture--could constitute cruel, inhuman, or degrading treatment that was clearly prohibited at the time. (See Steve Vladeck’s discussion of this issue here).On the second point, the Ninth Circuit’s ruling suffers from a troubling circularity.
The “debate” over torture, such as it was at the time, was largely manufactured by John Yoo and others precisely to engage in conduct that the law prohibited. The court thus takes what might be described as part of a conspiracy to commit torture as the reason to insulate those responsible from liability. The appeals court, at least, observes that recent judicial decisions suggest that the treatment to which Padilla was subject does constitute torture (One of the cases it cites—Vance v. Rumsfeld—is being reheard by the Seventh Circuit en banc.).
But the opinion also fails to make clear that protection from abusive interrogation methods does not depend on whether a terrorism suspect is classified as an enemy combatant (or an unprivileged enemy belligerent in current nomenclature) or a civilian criminal defendant. The panel states: “Even after Hamdi [v. Rumsfeld], it remains murky whether an enemy combatant detainee may be subjected to conditions of confinement and methods of interrogation that would be unconstitutional if applied in the ordinary prison and criminal settings.” The court fails to acknowledge Hamdan v. Rumsfeld, the Supreme Court decision holding that, however the conflict with al Qaeda is defined, detainees are covered by protections against mistreatment contained in Common Article 3 of the Geneva Conventions— protections that are in some ways are more robust than those provided by the Constitution.
If there is silver lining, it is that in disposing of the case on qualified immunity grounds, the court does not reach the government’s argument that “special factors counseling hesitation” preclude Bivens liability. This argument—adopted by the en banc Second Circuit in Arar v. Ashcfroft (a case involving the rendition of a Canadian citizen to Syria for torture) and the Fourth Circuit in Padilla v. Rumsfeld (Padilla’s suit against different defendants)—is more sweeping. A dismissal on “special factors” grounds would preclude civil liability even if a court believed that the conduct in question clearly constituted torture. Posted
by Jonathan Hafetz [link]