There has already been a lot of very good commentary across the internets and media on the notable decision in the 9th Circuit this week in the case of Jose Padilla v. John Yoo. Although many, if not most, commenters seem outraged, the decision is, sadly, both predictable and expected. I also think Marcy had about the right, and appropriately snarky, take on the decision embodied in her post title “Jay Bybee’s Colleagues Say OLC Lawyers Couldn’t Know that Torture Was Torture in 2001-2003“. Yep, that is just about right.
As to the merits, Jonathan Hafetz, in a very tight post at Balkinization, hits every note I would urge is appropriate, and does so better than I probably could hope to. Go read Jonathan. Above and beyond that, I think Steve Vladeck’s analysis is spot on:
In other words, (1) it wasn’t clear from 2001-03 that CIDT “shocks the conscience”; (2) Padilla’s mistreatment was not as severe as prior cases in which courts had recognized a torture claim; (3) it therefore wasn’t clear whether Padilla’s mistreatment was torture or CIDT; (4) it therefore wasn’t clear that Padilla’s mistreatment “shocks the conscience.”
Thus, the panel’s approach is basically that the mistreatment here falls between conduct that prior courts (including the Ninth Circuit) had held to be torture and conduct that prior courts had held to be merely CIDT. Because Padilla’s mistreatment was less severe than prior examples of torture, and more severe than prior examples of CIDT, it’s just not “clear” on which side of the torture/CIDT line Padilla’s mistreatment falls… Of course, the fact that A > B > C proves nothing about where B is. And under Hope v. Pelzer, the question in qualified immunity cases is not whether the plaintiff can prove that the defendant’s conduct was at least as bad as something already acknowledged to be unlawful. As Justice Stevens explained, it isn’t the case that “an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Instead, “in the light of pre-existing law[,] the unlawfulness must be apparent.”
Perhaps the panel would have reached the same result had they not skipped these steps. But to my mind, these are fairly significant omissions…
Wheeler, Hafetz and Vladeck are all correct about the infirmities in the 9th Circuit’s version of Padilla (without even getting to the 4th Circuit’s version of Padilla, contained in Padilla/Lebron v. Rumsfeld).
At this point, arguing over key governmental personnel accountability, or lack thereof, is pretty Read more