Jay Bybee’s Colleagues Say OLC Lawyers Couldn’t Know that Torture Was Torture in 2001-2003

The 9th Circuit has overturned a District court ruling holding that Jose Padilla could sue John Yoo for the torture and illegal detention that Yoo’s OLC work authorized.

While the decision sucks, I’m not so surprised by it, even coming from the purportedly hippie 9th Circuit.

In fact, I’m particularly interested in the way the opinion applies the Ashcroft v. Al Kidd standard about whether the conduct alleged–now obviously recognized to be illegal–was considered as such “beyond debate” at the time of that conduct.

We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

The circuit, in other words, argued that a poor little OLC lawyer serving in the 2001 to 2003 time frame might genuinely consider the treatment that Padilla received to be legal at the time.

And remember, a number of the memos cited in the complaint were signed by then OLC head, now 9th Circuit Judge Jay Bybee.

  • A January 22, 2002 memorandum to Gonzales signed by then-Assistant Attorney General Jay Bybee but allegedly drafted by Yoo on the Application of Treaties and Laws to al Qaeda and Taliban Detainees.
  • A February 26, 2002 memorandum to Haynes signed by Bybee but allegedly created by Yoo on Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan.


  • An August 1, 2002 memorandum to Gonzales, again signed by Bybee but allegedly created by Yoo, on Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, concluding that an interrogation technique must cause damage that rises “to the level of death, organ failure, or the permanent impairment of a significant body function” in order to be considered torture.
  • A second memorandum produced during August 2002 addressing the legality of particular interrogation techniques that the CIA wished to employ.

Oh good. We don’t have to question the competence of anyone on the 9th Circuit now, given that the 9th Circuit has judged that it was not beyond debate that Inquisition torture methods were torture when now-9th Circuit judges were signing off on claims they weren’t.

47 replies
  1. EmilyDickinson says:

    Your last paragraph perfectly captures the circular reason of saying that the people who said torture wasn’t torture can’t be held liable for torture because there were people saying it wasn’t torture.

  2. pdaly says:

    What would be the harm to the Rule of Law if we (the country) erred on the side of holding Yoo accountable now for allowing torture back then? even if he himself did not recognize the harsh interrogation methods as torture?

    If future would-be-Yoo’s hesistate (because the country might turn on them) before sanctioning similar harsh interrogation techniques that may not be legal , couldn’t we say that would be a net plus to the rule of law?

  3. pdaly says:


    I agree. And even if they did, I’m sure the administration would call it a ‘parade of horribles’ instead.

  4. bsbafflesbrains says:

    I don’t think they care what they say or how they rationalize their conduct. No fear of prosecution or even investigation so BS suffices. Accountability for unethical behavior is non existent; indeed for illegal conduct as well. It’s almost like I can hear Dick Cheney in the background saying “whatever, F@#% YOU” .

  5. What Constitution? says:

    What’s so circular about that reasoning? “It must not have been universally considered wrong if Yoo could fashion an argument saying it was not universally considered wrong”. Follows logically.

    It’s not that it’s circular, it’s that it’s stupid. It is the judicial adaption of the Jon Alter principle of journalistic stenography: “It’s not our job to say whether it’s true; we just report that ‘some say’ and if there’s somebody who disagrees, we can report that ‘some disagree’.” The Ninth Circuit won’t assess the merit of the contention, but instead immunizes the author because the simple fact he wrote a contention down “establishes” that it was possible to do so.

  6. GKJames says:

    What I likely will never overcome is the fact that Bybee and Yoo, whose legal acumen and work product are limited to, we’re at war and there is NO limit to executive power when the country is at war, enjoy sinecures for life. One, purportedly dispensing justice, we have to pay for for however many decades he still has to go. The other inculcates his twisted views in the country’s future lawyers (at Berkeley, no less; the Board of Trustees was thinking what, exactly?).

    P.S. Can someone remind me from whose anus B & Y extracted the “to the level of death, organ failure, or the permanent impairment of a significant body function” standard?

  7. prostratedragon says:

    Rousing from another moment of despair for an OT note:

    Sometimes the nostrums to tell the hardest truth first and to tell home truths come together felicitously. Did this bit about the author of the New Yorker piece on the Bin Laden raid surface here on emptywheel blog? It might explain how a relative newcomer of a freelance journalist got such extraordinary access as Marcy already had gathered he must have had:

    Why would senior administration officials and special operations sources trust Schmidle with the story? It couldn’t hurt that the deputy commander for U.S. Cyber Command, Marine Corps Lt. Gen. Robert E. Schmidle Jr., was the freelancer’s father. (Cyber Command initiates and defends against international online spying.)

    (At the top there I’m referring to the habitual silence of some of Chicago’s great social critics on cryingly salient local issues; actually the journalists at The Reader are far less guilty of this than Some.)

  8. EmilyDickinson says:

    @What Constitution?:
    I do think your first point mistakenly, like the 9th Circuit, tries to fit “universally” into this business (when jurisprudence relies not on universality, but on civilized consensus — the law) and thereby ends up with, yes, the logical “stupidity” of the court instead: Why bother weighing the improbability that Yoo didn’t know what thin ice he was on against a post-Nuremberg world of laws and conventions on torture when it is unassailably logical that someone who supports torture proves that someone supports torture?

    The 9th Circuit is saying that Yoo should not have been expected to know what torture was because his argument at the time was that torture wasn’t torture. “Yoo could not have been expected to know waterboarding was torture because he said, ‘Waterboarding isn’t torture.’” This is circular reasoning, in which the demonstration that Yoo made an argument for torture (by simply redefining it) is accepted as a logical, defensible basis for believing that torture wasn’t torture. Allowing the criminal to define the crime is, I fear, the 21st century American approach to the law.

  9. CheneyWatch says:

    This continued “Special pleading” should never be supported by a court. White people once believed it was good to enslave people, guess, that makes it ok for the times.

    What an absurdist logic for a judge to uphold. Rodriguez and others keep using this special pleading to forgive their crimes and due to the malignancy that is the 4th estate, the memory hole for laws is huge while the memory hole for 9/11 is never allowed. “remember this was after 9/11” is a phrase I have grown so tired of.

    The Reichstag justification aside, they’ve known it was wrong all along as evidenced by their constant need to justify their wrong deeds. Now with Obama’s complicity adding to the problem, who cares if we ever had torture laws in the first place, after all, at the time we can plead whatever we’d like.

  10. earlofhuntingdon says:

    So much for the liberal “bias” of the 9th Circuit. If a xenophobic, power-adoring, wingnut lawyer employed by the government can imagine a treatment as legal, then who is the victim of that treatment – even if it were limited in fact to the treatment authorized by such a lawyer – to question it, or indeed any other person or lawyer, let alone a federal judge.

    We’ve thrown much of the Nuremberg tradition into the dumpster, except its locus as site for fulsome praise for xenophobic government excess.

  11. bmaz says:

    @GKJames: The language actually seems to have come from an impertinent and somewhat archaic health benefits statute. It was baloney.

  12. bmaz says:

    @CheneyWatch: Uh, what do you mean by “special pleading”? Because there is a certain use for that term in the law and, while I hate the preclusion to access here, I am not sure that is the best way to describe the issue presentation. Although, the old fashioned sense of the term may apply to the selective analysis by the court.

  13. Kathleen says:

    Obama, Holder, Leahy, Feinstein, etc etc “no one is above the law, no one is above the law” except the people who write the laws. “no one is above the law”…you are getting sleepy, you are getting sleepy. Who the hell do they think believes this bullshit?

  14. Lizard says:

    I want a lawyer to tell me why this judgement isn’t evidence of conspiracy to commit a war crime.

    What the above says is basically this: People have known for decades that wateboarding was torture, then, in 2001, they FORGOT WHAT TORTURE WAS, tortured, remembered what torture was and stopped torturing, in 2003. But during the time they forgot what torture was, IT WASNT TORTURE, so they aren’t torturers. The people who did the same things BEFORE, were torturers, and anybody who does it now WILL BE torturers, but they weren’t. Just them. Just the guys who worked with our colleague Jay Bibey. Just them. Everybody else who waterborded, torturers. Them: not torturers.
    And people wonder why I have no respect for the law.

  15. bmaz says:

    @Lizard: Because there is not one possible shred of evidence that the three judge panel in this case conspired with anybody to do anything but their jobs. Honestly, I hate the decision, but saying the judges are conspiring to commit a war crime is patently scandalous and absurd. Secondly they relied heavily on a prior decision from another circuit, so they are certainly not voices alone here. Thirdly, Mr. Padilla was not waterboarded.

    Again, it is a crappy decision in many ways, but not for the scurrilous reasons you suggest.

  16. Lizard says:

    Am I mistaken that the very act those lawyers committed was forseen and specifically prohibited as a defense in The Geneva Conventions to which we are signatory? Is it not the the very act THIS JUDGEMENT ACCOMPLISHES is itself a war crime (the redefinition of torture for two years, retroactively)? If this is not an accurate analysis I will both apologize and withdraw it to the best of my ability, but you will need to explain to e WHY my analysis is inaccurate. Or is my question so scurrilous and toxic that it cannot be asked?

  17. Lizard says:

    Waterboarding is not the only torture being committed. Padilla was almost certainly drugged, broken psychologically by both solitary confinement, sensory deprivation adn sleep deprivation. ALL these things are torture, most of them have been admitted to and aren’t in serious contention.

  18. Lizard says:

    This fits all the definitions of a RICO case, too. These people arent being prosecuted because of who they are, these judges know it (because they arent stupid) and they know Bibey, and NONE of their participation in this decision was even ethical. It is almost by definition corruption and conspiracy. Just because they are doing it out in the open and gaming a set of rules right where we can see it does not in any way absolve them.

    /end rant

  19. P J Evans says:

    Well, Bybee is certainly someone whose appointment to the 9th CC should have been turned down firmly. And Yoo shouldn’t be teaching law students. (I think they both should be disbarred, but it won’t be happening in this universe. Our ethical constant is set way too low.)

  20. Lizard says:

    I am saying that I think they are both technically guilty of a violation of geneva (a crime) and morally guilty by intending to circumvent responsibility for a war crime (the torture of Jose Padilla)

  21. Lizard says:

    @pdaly: What Yoo recognized as torture or not torture is not the issue, it was SETTLED LAW, and he was ethically required and LEGALLY REQUIRED to advise his client that altho he himself believed it was not torture, he was in the minuscule minority and his advice was fringe AT BEST. He was ethically REQUIRED to advise his client that torture was well-defined, and that redefining it was a violation of SETTLED LAW. He is not a legislator, he may not unilaterally redefine laws, which is basically what happened. The fig-leaf insurance law they cribbed their new decision from was not a reasonable interpretation of the law.

  22. Lizard says:

    @P J Evans: These people (Addington to Bibey to Yoo to Cheney and maybe to Bush, if he actually knew about it) could be successfully prosecuted for more crimes than I could fit in one post. There are prima facea cases of murder, conspiracy to deny civil rights, contempt, Abuse of prosecutorial discretion, malpractise, reckless disregard, name it. The only hurdle that must be met is that LAWYERS have to police their own by admitting that these lawyers are LEGALLY RESPONSIBLE FOR THE ADVICE THEY GAVE. Naturally, this is not a popular position amongst some lawyers.

  23. OneCrankyDem says:

    It won’t be until some foreign country decides to take these matters into their hands because we won’t or are incapable of cleaning up our own mess. The Spanish seem too be under so much pressure they are politically going after their number Human Rights Judge rather than let him stir the pot.
    Until this day it is up to us to keep this a democracy.

  24. pdaly says:

    Lizard, you are describing how OLC should behave, not how it behaved.

    I agree. Yoo could have done a lot to caution the Executive Branch–but where would that have left his theory of the awesomeness of the Unitary Executive growing power in a time of war?

  25. Lizard says:

    @pdaly: I believe I am describing the way they were legally required to behave, not the way they actually behaved. This cognitive dissonance has a name, in the English language we call it “crime”.

  26. Lizard says:

    @bmaz: Please elaborate. If federal officials corruptly abuse their discretion, they are not immune from prosecution. So you need to make a judgement call as to whether or not they are corruptly exercising the powers of their office. They are. The act of conferring upon them such immunity is a clear violation of federal law, I believe the phrase of art is “Highest Law of the Land”, a ratified treaty. Geneva SPECIFICALLY rejects the defense being presented. It can be federally prosecuted. It can be SUCCESSFULLY prosecuted.

  27. Lizard says:

    And i must ask, at what point do the Nazi analogies cease to be verboten in polite conversation? I think that line should be drawn at torture.

  28. bmaz says:

    @OneCrankyDem: Yeah, that is really the crux of it. The US is the 8 million pound gorilla in the global room. We may be on the decline in one sense but, due to our militaristic and diplomatic prowess, there is no time in the foreseeable future in which any First World country, quite frankly probably even any Second World country, will be willing to meaningfully so challenge the US in this regard. I love, and respect the international law arguments of people such as Scott Horton, Mary Ellen O’Connell, Clive Stafford Smith, etc. But, in all honesty, it is pissing into the wind until enough forces can be brought to bear to overcome the iron fist of the US arrogance. Maybe if the whole EU collectively made findings and international demands, something would move. But when the great white hope is a marginal judge or two in Spain, who have NEVER had the backing of the Spanish government, you are up a dry creek with no paddle, nor legs.

  29. bmaz says:

    @Lizard: Although this question has not been addressed by the United States Supreme Court, the circuit courts of appeals who have considered the question generally agree that governmental entities cannot be named as defendant persons under the RICO Act and, thus, cannot be held civilly or criminally liable for violations of the statute. Various reasons have been expressed for allowing governmental entities to escape liability under RICO. The United States Court of Appeals for the Ninth Circuit has held that “government entities are not capable of forming [the] malicious intent” necessary to support a RICO action. Pedrina v. Chun, 97 F.3d 1296, 1300 (9th Cir. 1996) (quoting Lancaster Community Hospital v. Antelope Valley Hospital, 940 F.2d 397, 404 (9th Cir. 1991)), cert. denied, 520 U.S. 1268 (1997). The Ninth Circuit also considers it bad policy to hold the “body-politic” liable for the criminal actions of a single government agent or a group of government agents obviously operating beyond the scope of their authority. Lancaster Community Hospital, 940 F.2d at 404. The United States Court of Appeals for the Sixth Circuit has ruled that federal government entities cannot be held liable under RICO because “racketeering activity” occurs only if the defendant is “chargeable”, “indictable”, or “punishable” for violations of the crimes listed in section 1961(1). Because “a federal agency is not subject to state or federal criminal prosecution,” a federal governmental entity cannot possibly violate the RICO Act. Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991).

  30. Lizard says:

    What international law argument? Geneva is ratified, it isn’t JUST international law, it’s provisions have been passed by congress and signed (that is the meaning of ratification) INTO FEDERAL LAW. These cases can be successfully prosecuted with absolutely NO RECOURSE to international law.

  31. Lizard says:

    @bmaz: I believe that you are incorrect in your belief that no such case could be brought, but put RICO aside, since IANAL, (just please bear in mind that, as you acknowledged, this issue has not been spoken to by the Supremes) Ignore RICO. Can you address the violations of Geneva?

  32. bmaz says:

    @Lizard: You can “believe” all you want, the simple fact of the matter is that the United States federal government is not, and never has been, a proper party defendant to a RICO action. That is just the truth; whether you, or I, like it or not. If you can provide otherwise I am all ears. But, you cannot, and you will not.

    The modalities for bringing “Geneva” (there are multiple, and sometimes even confusing, protocols under “Geneva” not just one) to bear under domestic law are actually very complex. Can it be done? Well, theoretically, yes, but it is nowhere near so simple as just blurting out the word and obtaining accountability. That is precisely what all these arguments over standing, immunity etc. are about.

  33. Lizard says:

    I believe you are assuming that these people exercised their authority in good faith. I think it can be shown that they did not do so. Am I incorrect in believing this immunity simply does not apply in cases in which it can be demonstrated that the actors knew they were committing a crime at the time? They did, and I am fairly sure it can be demonstrated beyond a reasonable doubt, and therefore, obviously, by the preponderance of evidence.

  34. Lizard says:

    Now, you admit that it can be theoretically done. All that is lacking is the moral courage to do it. I believe that if the people who are charged with enforcing these laws believe that it can be theoretically done and the don’t do it, they should be immediately removed from their duties and prosecuted for refusing to do what is required by their oaths of office. And in fact this is what Geneva specifically calls for. These are war criminals, sir, and ANY responsible official that refuses to prosecute credible allegations of war crimes are, by the plain text of Geneva, WAR CRIMINALS.
    I urge you to read Geneva, and the congressional record of it’s ratification of those parts of Geneva that were ratified. I’m sorry, but it really inst particularly controversial. We simply need to come to grips with what we have done, and that cannot happen until people start becoming willing to put their fellow lawyers in jail. Might want to brush up on Nuremberg and the war crimes trials after the Japanese surrender while you are at it.

  35. Lizard says:

    Bmaz, I do not believe “the united states government” would or should be a defendant. I believe the immunity is improperly and unlawfully applied to these actors. They did not act in the good faith necessary to be considered to be carrying out the will of the federal government. They are NOT the state, they are criminally and corruptly abusing the powers vested in them BY the state, and are not entitled to the immunity as state operators that they have been granted in this circumstance. They cease to be legitimate executors of state power and therefor not entitled to the immunity that power grants. They are criminals and should be treated as such.
    I know that if I as a citizen should ever actually torture, actually murder and actually cause the death of (by reckless disregard) other human beings I could not claim that my lawyer told me it was OK and get away with it. Even if my lawyer was told repeatedly that he was committing a war crime by authorizing torture, and he WAS in fact commiting one? Which is essentially the position you seem to be taking.
    In the material Wikileaks published (Given to them by American Hero Bradley Manning, who did what you are supposed to do when in possession of material that is proof of war crimes, get it public as fast as possible) contain more ACTUAL war crimes than I can count and I am not finished reading them yet. At what point do we acknowledge that the people NOW IN POWER are actually, technically, legally and morally complicit in war crimes, and if Obama leaves office without ordering the prosecution of the bushies, HE will be unable to extract himself from complicity in those crimes he is refusing to prosecute (this is the spirit and letter of Geneva) and acts of clear torture that he has authorized himself (the treatment of Manning easily falls within the definitions of Geneva, as a war crime, provided he acknowledges that manning was in fact a soldier in a war, and I am not sure how anybody thinks they can make the case that he isn’t). It is Rule of Law, or No Rule of Law, and I am afraid it is pretty clear. Care to make the argument that Yoo is somehow illiterate and did not know what the responsibilities of his office were? They are clear. I think there is also an unconstitutional violation of the separation of powers case that could be made here, but I have done little research on it. If intent is a problem, he in his own words “Geneva, Quaint” signaled his intention to change, or attempt to change, Geneva’s meaning. He knows full well that he is changing the meaning of the law because he didn’t agree with settled law. That is not the lawful exercise of his power, that is a corrupt intention to circumvent, or, in simple English, BREAK, a law.

  36. Lizard says:

    I am just not comfortable employing legal theories that were rejected when used to attempt to exonerate German and Japanese war criminals, and am continually astonished that there exist lawyers who are. These people (the judges that rendered this decision) are doing exactly that, saying that for those two years, torture was okay because it was redefined. They successfully committed crimes against a signed, ratified treaty with the power of law and to intentionally violate that treaty while under color of authority is a federal crime. Geneva prohibits the kind of immunity these criminals are being extended, and these judges know it. Which -he said, like a broken record)- is a yadda yadda crime. The criminality here is pervasive, it is obvious, and every lawyer trained in ethics knows it. Yoo knows it. He has a nutjob wingnut theory, shared by, if I understand it correctly, one very powerful (but by no means representative) organization, the Federalist idiots. They also know what settled law is and openly acknowledge that they would like to change it They also know they haven’t changed it yet. Well, maybe after today they have.
    Wow, I should probably stop channeling Chomski and have a homebrew. Todays piece of garbage seems to have struck a nerve.

  37. bmaz says:

    @Lizard: Listen, I have read “Geneva”. Again, it is a hell of a lot more than the singularity you paint it as. There are multiple treaties/conventions as well as supplementary protocols and, additionally, there are certain “reservations” that have been made by the US that complicate interpretation thereof. The portions I believe you are referring to are contained within Common Articles II and III. Once you have made a prima facie claim of violation, the question then becomes whether there is a remedy, whether criminal or civil, under domestic American law. And that is where the rub lies and, no, it is nowhere near as simplistic as you seem to think.

  38. Lizard says:

    @bmaz: I do not think it is simplistic, I think it is clear, ethically. It doesnt matter how hard it is, how complex it is or how unlikely you think those laws are going to be to enforce, to not enforce them is the one course specifically required by Geneva. You understand the intent of Geneva, I understand the intent of Geneva, and believe it or not, the legal theory of Geneva you seem to be espousing is directly violative, as an ethical matter, of the ETHICAL INTENT, the idea, of Geneva, the idea we agreed with. The technicalities are simple obscuration of a clear line of ethical responsibility, the very ethical responsibility to not excuse torturers. If you see Geneva as both a list of ethical principles and the law of the land (both of which these ethical agreements we call treaties are supposed to be) then by simple logic, it is unethical to excuse torture in any way and for any reason. If you argue that it is in some way legal, OR EVEN CAN BE MADE LAWFUL IN ANY WAY, you are violating the ethical principle, and every law that flows from that principle. You cannot both be an ethical lawyer and believe that torture has in any way ever been lawfully authorized. Holding the belief that torture SHOULD be legal is fine, but acting in any way to allow it to become legal is unethical. and they knew it, and ignored it. They are complicit in a war crime when they act in a way they know to be criminal (they are not stupid, they took the ethics courses too, they just chose to ignore the ethical rules) So, yeah, as an ethical matter, it really is just that simple. Good god, do you WANT to live in a world where it is NOT a crime to authorize torture?

  39. klynn says:

    British prosecutor David Maxwell-Fyfe and Justice Robert Jackson are turning in their graves.

  40. Bob Schacht says:

    I think Adolf Eichmann’s lawyers would have been thrilled to try this defense.
    And to think that this Jay Bybee is now a justice in our court system! Pardon me, while I weep for the rape of Lady Justice.

    Bob in AZ

  41. matt carmody says:

    The claim that the judges wouldn’t have known whether or not the enhanced techniques that Bybee and Yoo sanctioned were torture or not is just absolute bullshit.

    The American people have been dumbed down so far that no one can follow an economics argument in this country, therefore the 1% and their minions can make arguments that make no sense and no one calls them on it.

    To claim that judges don’t know torture when they see it so they are immune from prosecution for endorsing torture, indicates that the owners believe the rest of us are complete dunces. There have been books written about torture that laid out what torture is. If judges can’t understand what constitutes torture because no decisions have emanated from the bench in the US, there’s a pretty good repository of documents and transcripts detailing the tortures endured by Allied soldiers and airmen at the hands of the Japanese and the Germans during WWII.

    And aren’t we all brought up with “Ignorance of the law” is no excuse when trying to plead a case here and there?

    We must be the laughingstock of the world.

  42. thatvisionthing says:

    Hey, wait a second. Emptywheel, lawyers, please, a question? My thing is “shocks the conscience,” and I haven’t read down all the comments but I did search on “conscience” and got no hits on this page. So we haven’t been talking about the legal test “shocks the conscience” here. But a torture case opinion — did it apply, at last, somewhere?

    I did a search for “conscience” in the opinion PDF and there are four hits, two on page 25, one on page 26, and one on page 28 (not as in the test, but as in a published title).

    p. 24-27, footnotes omitted:
    The absence of a decision defining the constitutional and
    statutory rights of citizens detained as enemy combatants need
    not be fatal to the plaintiffs’ claims. The Supreme Court has
    long held that “officials can still be on notice that their con-
    duct violates established law even in novel factual circum-
    stances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); see also
    United States v. Lanier, 520 U.S. 259, 271 (1997) (“There has
    never been . . . a section 1983 case accusing welfare officials
    of selling foster children into slavery; it does not follow that
    if such a case arose, the officials would be immune from dam-
    ages [or criminal] liability.” (alteration in original) (quoting
    United States v. Lanier, 73 F.3d 1380, 1410 (6th Cir. 1996)
    (Daughtrey, J., dissenting)) (internal quotation marks omit-
    [5] The plaintiffs invoke this principle here. They argue
    that, even if there is no specific judicial decision holding that
    the Fifth Amendment’s prohibition on government conduct
    that “shocks the conscience” is violated when the government
    tortures a United States citizen designated as an enemy com-
    batant, torture of a United States citizen is the kind of egre-
    gious constitutional violation for which a decision “directly
    on point” is not required. Al-Kidd, 131 S. Ct. at 2083.9 We
    agree with the plaintiffs that the unconstitutionality of tortur-
    ing a United States citizen was “beyond debate” by 2001.

    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.

    And it goes on to cite international pain-level-test cases I guess, Ireland, Israel (do Ireland and Israel have a “shocks the conscience” test?) and other cases including American ones, including ones where torture was found — but no description of a conscience test being applied that I see.

    So Padilla asked for the shocks-the-conscience test to be invoked, but because Yoo and his cohorts did fuzzy wheelies around that in 2001-03, Padilla’s not entitled to it, now or then? Said another way, it didn’t shock Yoo and his cohorts’ conscience, and that’s all that matters — the court need go no farther?

    I don’t know these cases, I’m surfing. I see “shocks the conscience” mentioned but skated by, not applied. The other three mentions of “conscience” are in the footnotes. p. 25-26 footnote discussion describes its place in due process and the air-tightness of no exceptions, no American authority can constitutionally authorize torture, ending with a 2000 nod to “shocks the conscience” test (again, just outside the doughnut hole of immunity sweet spot for Yoo?):

    (“Although the ‘shocks the conscience’ test is
    undeniably ‘vague,’ ‘[n]o one doubts that under Supreme Court precedent,
    interrogation by torture’ meets that test” (alteration in original) (citations
    omitted) (quoting Harbury v. Deutch, 233 F.3d 596, 602 (D.C. Cir. 2000)

    The court then “assumes without deciding” that Padilla was tortured, even without applying the “shocks the conscience” test, and still gives Yoo the pass. So I’m wondering, just when and how and by whom is the test ever applied? What does the test look like when it is applied in court? Was it ever, EVER applied in the Yoo doughnut hole, and if not, how can it be constitutional for the court to create a just-for-Yoo doughnut hole exception now?

    Informally, I wonder did these judges on the 9th look around at their fellow 9th circuit judge Bybee and say, well… okay? Was that the “jury” of Yoo’s peers? Is conscience testing supposed to be the province of a real, independent jury? (Is that where the Constitution put conscience and empathy, in every case, and not as an occasional Supreme Court justice’s whiffy qualification?) Did Yoo’s “jury” give themselves the standard “don’t use your conscience” instructions that Tim De Christopher’s jury got?

    I’m trying to find my Constitution here. I don’t see that the test was, will be or can be applied, just circular fuzzy nonsense that keeps it out while giving it lip-service appearance as if it were there, had been there all along giving its blessing to Yoo et al. It looks to me like elevated yoohoos just build on non-conscience-tested cases and keep going, never noticing that it’s missing, like the coyote walking off the cliff. And that’s the air they relied on and the nothing-there that future cases will have to rely on. What could possibly go wrong?

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