PADILLA v. YOO No. 09-16478.
678 F.3d 748 (2012)
Jose PADILLA and Estela Lebron, Plaintiffs-Appellees, v. John YOO, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Resubmitted December 8, 2011.
Miguel A. Estrada (argued) and Scott P. Martin, Gibson, Dunn & Crutcher LLP, Washington, D.C., for the appellant.
Jonathan M. Freiman (argued), Hope R. Metcalf, Tahlia Townsend and Amos E. Friedland, New Haven, CT; Natalie L. Bridgeman, San Francisco, CA, for the appellees.
Paul J. Orfanedes, Washington, D.C., for amicus curiae Judicial Watch, Inc.
Michael F. Hertz, Deputy Assistant Attorney General, Barbara L. Herwig and Robert M. Loeb, U.S. Department of Justice, Washington, D.C., for amicus curiae United States.
Peter B. Ellis and Usha-Kiran K. Ghia, Foley Hoag LLP, Boston, MA, for amici curiae Bruce Fein, Roberts B. Owen and Michael P. Scharf.
Eric L. Lewis, Baach Robinson & Lewis PLLC, Washington, D.C.; Elizabeth A. Wilson, John C. Whitehead School of Diplomacy and International Relations, Seton Hall University, South Orange, NJ, for amici curiae Distinguished Professors of Constitutional and Federal Courts Law.
Hamid Jabbar, Scottsdale, AZ; Hirad D. Dadgostar, Los Angeles, CA; Dawinder S. Sidhu, Potomac, MD, for amici curiae Legal Ethics Scholars.
Before: RAYMOND C. FISHER and N. RANDY SMITH, Circuit Judges, and REBECCA R. PALLMEYER, District Judge.,
FISHER, Circuit Judge:
After the September 11, 2001 attacks on the United States, the government detained Jose Padilla, an American citizen, as an enemy combatant. Padilla alleges that he was held incommunicado in military detention, subjected to coercive interrogation techniques and detained under harsh conditions of confinement, all in violation of his constitutional and statutory rights. In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice's Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was not "sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]" the plaintiffs' rights. Ashcroft v. al-Kidd, ___ U.S. ___,
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.
I. BACKGROUND 1
In early May 2002, Padilla was arrested at Chicago O'Hare International Airport pursuant to a material witness warrant issued by the United States District Court for the Southern District of New York. Compl. ¶ 35. He was transported to New York, where he was held in custody in a federal detention facility. Id.
On June 9, 2002, President George W. Bush issued an order declaring Padilla an "enemy combatant" and directing the Secretary of Defense to take Padilla into military custody. Compl. ¶ 40. The presidential order asserted that Padilla was "closely associated with al Qaeda"; that he had "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States"; that he "possesse[d] intelligence, including intelligence about personnel and activities of al Qaeda, that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda on the United States"; that he "represent[ed] a continuing, present and grave danger to the national security of the United States"; and that his detention was "necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens." Memorandum from President George W. Bush to the Secretary of Defense (June 9, 2002), reprinted in Padilla v. Hanft,
In accordance with the President's order, Padilla was transferred from the federal detention facility in New York to a military brig in Charleston, South Carolina, where he was held in military custody for more than three and a half years, from June 2002 until January 2006. Compl. ¶¶ 1, 44. For a substantial portion of this period, from June 2002 until March 2004, government officials denied Padilla all contact with persons outside the brig, including his family and legal counsel. Compl. ¶ 56.
On January 5, 2006, Padilla was transferred from the military brig to a federal detention center in Miami, Florida, where he stood trial in federal district court on criminal charges unrelated to the allegations that had been used to justify his military detention. Compl. ¶ 11. In August 2007, the jury returned a verdict of guilty. Id. In September 2011, a divided Eleventh Circuit panel affirmed Padilla's conviction, vacated his sentence as unreasonably low and remanded for resentencing. See United States v. Jayyousi,
Padilla and his mother, Estela Lebron, filed this civil action against John Yoo, in his individual capacity, on January 4, 2008, two years after Padilla's military detention ended. In their first amended
The complaint alleged that Yoo is one of several current and former government officials who abused their high positions to cause Padilla's allegedly unlawful military detention and interrogation. Compl. ¶ 3. From 2001 to 2003, Yoo was Deputy Assistant Attorney General at OLC. Compl.¶ 13. Padilla and Lebron alleged that Yoo set in motion Padilla's allegedly illegal interrogation and detention, both by formulating unlawful policies for the designation, detention and interrogation of suspected "enemy combatants" and by issuing legal memoranda designed to evade legal restraints on those policies and to immunize those who implemented them. Compl. ¶ 3. They alleged that, in doing so, Yoo abdicated his ethical duties as a government attorney and abandoned his office's tradition of providing objective legal advice to the President. Id.
The complaint alleged that Yoo publicly acknowledged in his book, War By Other Means, that he stepped beyond his role as a lawyer to participate directly in developing policy in the war on terrorism. Compl. ¶ 15. It alleged that Yoo shaped government policy in his role as a key member of a small, secretive and highly influential group of senior administration officials known as the "War Council," which met regularly "to develop policy in the war on terrorism." Id. It alleged that Yoo acted outside the scope of his employment at OLC by taking instructions directly from White House Counsel Alberto Gonzales and providing Gonzales with verbal and written advice without first consulting Attorney General John Ashcroft. Compl. ¶ 16. The complaint alleged that, in his role as the de facto head of war-on-terrorism legal issues, Yoo wrote and promulgated a series of memoranda that ultimately led to Padilla's allegedly unlawful treatment, including:
The complaint alleged that these memoranda advised that there were no legal constraints on the Executive's policies with respect to the detention and interrogation of suspected terrorists. Compl. ¶ 21. It alleged that the memoranda "did not provide the fair and impartial evaluation of the law required by OLC tradition and the ethical obligations of an attorney to provide the client with an exposition of the law adequate to make an informed decision." Compl. ¶ 22. Rather, it alleged that Yoo "intentionally used the Memos to evade well-established legal constraints and to justify illegal policy choices that he knew had already been made—sometimes by virtue of his own participation in the War Council." Compl. ¶ 23.
The complaint also alleged that Yoo personally participated in Padilla's unlawful military detention. Quoting from Yoo's book, it alleged that Yoo "personally `reviewed the material on Padilla to determine whether he could qualify, legally, as an enemy combatant, and issued an opinion to that effect.'" Compl. ¶ 38. It alleged that Ashcroft relied on Yoo's opinion in recommending to the President that Padilla be taken into military custody. Comp. ¶ 39.
The complaint alleged that Padilla's designation as an enemy combatant, military
The complaint sought two remedies: a declaration that Padilla's treatment violated the Constitution and RFRA, and nominal money damages of one dollar. The plaintiffs subsequently agreed to dismiss their claims for declaratory relief, leaving only a claim for nominal damages.
Yoo moved to dismiss the action for failure to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). He argued that the complaint failed to state a claim for money damages on three grounds. First, he argued that the plaintiffs could not state an action for damages because Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
The district court denied Yoo's motion. See Padilla v. Yoo,
With respect to this last issue, the district court acknowledged Yoo's argument that, at the time of Yoo's tenure at OLC, "no federal court ha[d] afforded an enemy combatant the kind of constitutional protections Padilla seeks in this case," and that "courts ha[d] never attributed the level of constitutional rights sought in this action" to enemy combatants—a "unique type of detainee." Id. at 1036. But the court concluded that the complaint nonetheless alleged violations of clearly established law because "the basic facts alleged in the complaint clearly violate the rights afforded to citizens held in the prison context," and because all detainees, including enemy combatants, must be afforded at least the rights to which convicted prisoners are entitled. Id. at 1036-38 (emphasis added). The court explained:
Id. at 1037-38 (citations and footnote omitted).
The court accordingly concluded that Yoo was not entitled to qualified immunity and denied Yoo's motion to dismiss. The crux of the district court's decision for purposes of this appeal is its assumption that any reasonable official would have understood in 2001-03 that United States citizen enemy combatants in military detention must be afforded at least the constitutional and statutory rights afforded to ordinary prison inmates.
Of relevance, a different federal district court reached a contrary result in a related case. In February 2007, Padilla and Lebron filed an action similar to this one in the United States District Court for the District of South Carolina against former Secretary of Defense Rumsfeld, former Attorney General Ashcroft, 11 other current or former government officials and unnamed Doe defendants, including the individuals allegedly responsible for Padilla's interrogation at the military brig. In February 2011, the district court dismissed the South Carolina case for failure to state a claim, in part concluding that the defendants were entitled to qualified immunity because the complaint failed to allege that Padilla's treatment violated clearly established law. See Lebron v. Rumsfeld,
First, the court rejected the proposition that Padilla's designation as an enemy combatant and consequential military detention violated his clearly established constitutional rights. See id. at 802-03. The court noted that President Bush had signed the order designating Padilla as an enemy combatant in June 2002, and that courts had reached inconsistent conclusions as to whether Padilla's designation and detention were lawful.
Second, the court concluded that the manner in which Padilla was treated while detained as an enemy combatant, which included the alleged use of coercive interrogation techniques, likewise did not constitute a violation of clearly established constitutional law. See id. at 803-04. The court reasoned that:
Id. (citation omitted) (quoting Maciariello v. Sumner,
Finally, the court concluded that Padilla's treatment while detained did not violate clearly established rights under RFRA. See id. at 804-05. The court pointed out that "[n]o American court during this period had ever definitively addressed the potential applicability of the RFRA to persons who were undergoing interrogation as enemy combatants." Id. at 804. The court accordingly held that the defendants were entitled to qualified immunity on the plaintiffs' RFRA claim as well. See id. at 805.
In January 2012, the Fourth Circuit affirmed dismissal of the South Carolina action. See Lebron v. Rumsfeld,
We asked the parties to file supplemental briefs addressing the Fourth Circuit's decision and, in particular, whether we should give preclusive effect to the Fourth Circuit's decision under the doctrine of nonmutual defensive collateral estoppel. The parties disagree about whether collateral estoppel should apply. In view of our precedent, we choose to treat the Fourth Circuit's decision as persuasive precedent rather than affording it preclusive effect. See Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd.,
Yoo timely appealed the district court's order in this case denying his motion to dismiss. We have jurisdiction under 28 U.S.C. § 1291, see Ashcroft v. Iqbal, 556 U.S. 662,
The outcome of this appeal is governed by the Supreme Court's decision in Ashcroft v. al-Kidd, ___ U.S. ___,
The Court began by reaffirming the general principle that "[q]ualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was `clearly established' at the time of the challenged conduct." Id. at 2080 (quoting Harlow v. Fitzgerald,
Applying these principles, the Court concluded that al-Kidd's complaint fell "far short" of alleging a violation of clearly established law. Id. at 2083. The Court observed that, "[a]t the time of al-Kidd's arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional." Id. Furthermore, the Court's decisions as a whole had emphasized that Fourth Amendment reasonableness is "predominantly an objective inquiry," id. at 2080 (quoting City of Indianapolis v. Edmond,
Here, the complaint alleged that Yoo, as a Justice Department attorney, participated in policy decisions and rendered legal opinions that ultimately authorized federal officials to designate Padilla as an enemy combatant, take him into military custody, hold him incommunicado without access to the courts or counsel and subject him to both coercive interrogation techniques and harsh conditions of confinement,
Padilla and Lebron acknowledge that at the time Yoo served as Deputy Assistant Attorney General at OLC, there did not exist a "single judicial opinion," id. at 2083, holding that a United States citizen held in military detention as an enemy combatant possessed rights against the kind of treatment to which Padilla was subjected. They argue, however, that it was clearly established that Padilla possessed such rights because any reasonable official would have understood during 2001 to 2003 that a citizen detained as an enemy combatant had to be afforded at least the constitutional protections to which convicted prisoners and ordinary criminal suspects were entitled. That argument is foreclosed by al-Kidd, which compels us "not to define clearly established law at a high level of generality." Id. at 2084.
Granted, it may sometimes be permissible to rely on cases involving one type of detainee to establish clearly established constitutional rights of another type of detainee. See City of Revere v. Mass. Gen. Hosp.,
Here, of course, the Supreme Court had not, at the time of Yoo's tenure at OLC, declared that American citizens detained as enemy combatants had to be treated at least as well, or afforded at least the same constitutional and statutory protections, as convicted prisoners. On the contrary, the Supreme Court had suggested in Ex parte Quirin,
In Quirin, the Court unanimously rejected the claim of a United States citizen who was detained as an unlawful enemy combatant that he was "entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses." Id. at 24, 63 S.Ct. 2. The petitioner in question—Herbert Haupt— was a German agent who claimed to be an American citizen. See id. at 20-22, 63 S.Ct. 2. He had entered the United States to commit acts of sabotage in support of the German war effort. See id. at 21-22, 63 S.Ct. 2. He was captured on American soil, charged by the Judge Advocate General's Department of the Army with violations of the law of war and the Articles of War and tried by a military commission. See id. at 21-23, 63 S.Ct. 2. He argued in a habeas corpus petition that he was entitled under Article III and the Fifth and Sixth Amendments to the Constitution to grand jury presentment and trial by jury. See id. at 38, 63 S.Ct. 2. The Court rejected his claim, reasoning that unlawful belligerents had been subject to military trial at the time of the Constitution's adoption and that neither Article III nor the Bill of Rights had been intended to alter that practice. See id. at 39-44, 63 S.Ct. 2. That Haupt was a citizen was immaterial; as an unlawful combatant he was subject to trial by military tribunal alongside the alien saboteurs with whom he was tried. See id. at 37-38, 44-45, 63 S.Ct. 2.
Padilla and Lebron alternatively rely on the Supreme Court's decision in Hamdi v. Rumsfeld,
Hamdi, however, was not decided until 2004, so it could not have placed Yoo on clear notice of Padilla's constitutional rights in 2001-03 when Yoo was at the Department of Justice. Even after Hamdi, moreover, 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. Although Hamdi recognized that citizens detained as enemy combatants retain constitutional rights to due process, the Court suggested that those rights may not be coextensive with those enjoyed by other kinds of detainees. On the contrary, the Court held that the rights afforded to an enemy combatant detainee "may be tailored" to the circumstances, id. at 533, 124 S.Ct. 2633, because "the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting," id. at 535, 124 S.Ct. 2633.
In sum, the plaintiffs did not, through their reliance on either Hamdi or cases involving ordinary prison and criminal settings, allege violations of constitutional and statutory rights that were clearly established in 2001-03. During that relevant time frame, the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established. But Padilla was not a convicted prisoner or criminal defendant; he was a suspected terrorist designated an enemy combatant and confined to military detention by order of the President. He was detained as such because, in the opinion of the President— albeit allegedly informed by his subordinates, including Yoo—Padilla presented
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 conduct violates established law even in novel factual circumstances." Hope v. Pelzer,
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 combatant, torture of a United States citizen is the kind of egregious constitutional violation for which a decision "directly on point" is not required. Al-Kidd, 131 S.Ct. at 2083.
In 2001-03, there was general agreement that torture meant the intentional infliction of severe pain or suffering, whether physical or mental.
In several influential judicial decisions in existence at the time of Yoo's tenure at OLC, for example, courts had declined to define certain severe interrogation techniques as torture:
Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser.A) (1978), is the European Court of Human Rights' leading decision on torture. The court considered whether five interrogation techniques used by the United Kingdom to interrogate suspected members of the Irish Republican Army violated Article 3 of the European Convention of Human
In HCJ 5100/94 Public Committee Against Torture in Israel v. Israel 53(4) PD 817  (Isr.), reprinted in 38 I.L.M. 1471, the Israeli Supreme Court considered whether coercive techniques used by Israeli security forces violated international law. The techniques included hooding, violent shaking, painful stress positions, exposure to loud music and sleep deprivation.
In Price v. Socialist People's Libyan Arab Jamahiriya,
In other decisions in existence at the time of Yoo's OLC tenure, this Circuit found torture, but the treatment at issue was more severe than that to which Padilla was allegedly subjected:
In Hilao v. Estate of Marcos,
Here, Padilla alleged that he was subjected to prolonged isolation; deprivation of light; exposure to prolonged periods of light and darkness, including being "periodically subjected to absolute light or darkness for periods in excess of twentyfour hours"; extreme variations in temperature;
We assume without deciding that Padilla's alleged treatment rose to the level of torture.
For these reasons, we hold that Yoo is entitled to qualified immunity on the plaintiffs' claims.
Our conclusion that Yoo is entitled to qualified immunity does not address the propriety of Yoo's performance of his duties at OLC otherwise. As amici point out, the complaint alleges that Yoo "intentionally violated professional standards reflected in OLC practice and willfully disregarded the obligations attendant on his office." Brief of Bruce Fein, Roberts B. Owen and Michael P. Scharf as Amici Curiae in Support of Plaintiffs-Appellees and Affirmance 2. Amici argue that "[s]uch conduct, if proven, would strike at the very heart of OLC's mission and seriously compromise the ability of the executive to make informed, even lawful, decisions." Id. at 2-3. These allegations have been the subject of an internal Department of Justice investigation of Yoo's compliance with professional standards and are not at issue here.
Yoo is entitled to qualified immunity. The order of the district court denying Yoo's motion to dismiss is therefore reversed in pertinent part.
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