Jose Padilla

John Yoo

The Supreme Court is done hear­ing cases for this sea­son. But the Ninth Cir­cuit Court of Appeals issued an opin­ion yes­ter­day that may be reviewed by the Supremes in the future. The case is Jose Padilla v. John Yoo.

If those names ring a bell, it’s with good rea­son. Jose Padilla is the Amer­i­can cit­i­zen dubbed the “dirty bomber”, for his arrest, on sus­pi­cion of plot­ting a radi­o­log­i­cal bomb attack, almost exactly ten years ago, on May 8, 2002. John Yoo was a mem­ber of the George W. Bush Admin­is­tra­tion Jus­tice Department’s Office of Legal Coun­sel, where he gained noto­ri­ety as the author of the “Tor­ture Memos”, which pro­vided a legal argu­ment that “enhanced inter­ro­ga­tion” was legally dis­tinct from “tor­ture” as described in the Con­ven­tion Against Tor­ture.

In his youth, Padilla was a street gang mem­ber in Chicago, and con­verted to Islam in his early 20s after serv­ing his last jail sen­tence as a street gang mem­ber. In 2001 and 2002, he had been in the Afghanistan/​Pakistan region, where he allegedly received train­ing on build­ing and deploy­ing radi­o­log­i­cal bombs. He is fur­ther alleged to have been ordered to launch ter­ror attacks in the United States.

He trav­eled through­out the Mid­dle East, and upon his May 8, 2002, return to the United States was arrested at Chicago O’Hare Inter­na­tional Air­port, being held as a mate­r­ial wit­ness to the Sep­tem­ber 11, 2001, ter­ror attacks. Dis­trict Court Judge Michael Mukasey was sched­uled to issue a deci­sion on June 11, 2002, regard­ing the valid­ity of Padilla’s con­tin­ued deten­tion as a mate­r­ial wit­ness. Two days prior, on June 8, Pres­i­dent Bush ordered Defense Sec­re­tary Don­ald Rums­feld to detain Padilla as an “enemy com­bat­ant”, and he was with­out notice taken to a mil­i­tary brig in South Car­olina, where he was held in extreme isolation.

Since crim­i­nal charges had not been filed against Padilla, he made a peti­tion for a writ of habeas cor­pus. The gov­ern­ment moved to dis­miss on three tech­ni­cal­i­ties, which the New York Dis­trict Court denied. At the same time, the Court declared that, per the deci­sion in Ex parte Quirin, Amer­i­can cit­i­zens can be declared “enemy com­bat­ants”, but that those so declared are enti­tled to chal­lenge the des­ig­na­tion as part of a habeas cor­pus peti­tion.

Both sides appealed to the Sec­ond Dis­trict Court of Appeals, who affirmed the denial of the government’s motion, but also denied that an Amer­i­can cit­i­zen could be declared an “enemy com­bat­ant” on Amer­i­can soil unless he was actu­ally within a zone of com­bat, stat­ing that Arti­cle I, Sec­tion 9, Clause 2 of the Con­sti­tu­tion grants only Con­gress this author­ity. Since Con­gress did not autho­rize Padilla’s des­ig­na­tion as an “enemy com­bat­ant”, the Court ordered Pres­i­dent Bush to release Padilla within 30 days, though per­mit­ted a stay on the order pend­ing the government’s appeal to the Supreme Court.

While the Supreme Court agreed to hear the case (Rums­feld v. Padilla), the Court remanded the case, grant­ing two of the three technicalities.

The case was refiled, address­ing the tech­ni­cal­i­ties, and the United States Court for the Dis­trict of South Car­olina ordered that the gov­ern­ment either charge or release Padilla. The Supreme Court refused to directly hear the government’s appeal, instead requir­ing the case first be heard by the Fourth Cir­cuit Court of Appeals. A three-​​judge panel of the Fourth Cir­cuit decided that Bush had the author­ity to hold Padilla with­out charges, claim­ing that the The Autho­riza­tion for Use of Mil­i­tary Force Joint Res­o­lu­tion (the bill that autho­rized Bush to invade Afghanistan) con­sti­tuted Con­gres­sional autho­riza­tion for Bush to sus­pend the writ of habeas cor­pus.

The Supreme Court agreed to hear an appeal of the deci­sion, where­upon Padilla was finally charged for “conspir[ing] to mur­der, kid­nap and maim peo­ple over­seas.” These over­seas peo­ple were in Bosnia, Chech­nya, Kosovo, and Soma­lia, not Afghanistan, Pak­istan, Iraq, or any other coun­try where the United States was actively mil­i­tar­ily involved. It was clear to the Fourth Cir­cuit that Padilla was being charged strictly to moot the habeas case; for this rea­son they refused to allow Padilla to be trans­ferred to a civil­ian prison.

The Supreme Court ulti­mately granted the trans­fer and denied cer­tio­rari, thus moot­ing the case. Ulti­mately, Padilla was con­victed on all counts, and sen­tenced to 17 years. He is now incar­cer­ated in the Flo­rence ADX (“Super­Max” Fed­eral Prison) in Colorado.

A few months after his con­vic­tion, Padilla filed suit against John Yoo in the United States Dis­trict Court of North­ern Cal­i­for­nia, alleg­ing dam­ages caused by tor­ture autho­rized by Yoo’s memos. This is the case that was decided yesterday.

The Ninth Cir­cuit Court decided that Yoo has qual­i­fied immu­nity. Qual­i­fied immu­nity means that gov­ern­ment offi­cials, act­ing in their offi­cial duties, are free from lia­bil­ity for mak­ing a wrong deci­sion, pro­vided that there was no prece­dent that clearly defined their actions as wrong. In this case, since Yoo was act­ing in his offi­cial duty as a gov­ern­ment offi­cial, and there was no clear prece­dent that the activ­i­ties he described in his memos did, in fact, con­sti­tute tor­ture, he is not liable.

The Court did not con­sider whether Padilla’s alle­ga­tions were true. Rather, they con­cluded that, even if all of the alle­ga­tions were true, Yoo has qual­i­fied immu­nity, because no deci­sion had been ren­dered up to that point regard­ing the legal­ity of the actions described in his memos.

So I have a cou­ple of ques­tions for you:

  1. Do you think Yoo’s actions should be cov­ered under qual­i­fied immu­nity? Why or why not?
  2. What reme­dies should Amer­i­can cit­i­zens like Padilla have for being sub­ject to torture?
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