|
|
PADILLA v. YOO
678 F.3d 748 (2012)
Jose PADILLA and Estela Lebron, Plaintiffs-Appellees,
v.
John YOO, Defendant-Appellant.
No. 09-16478.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 14, 2010.
Submission vacated October 18, 2010.
Filed May 2, 2012.
Resubmitted December 8, 2011.
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.
Before: RAYMOND C. FISHER and N. RANDY SMITH, Circuit Judges, and REBECCA R. PALLMEYER, District Judge.*,**
OPINIONFISHER, 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. ___, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). 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. A.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.
* The Honorable Rebecca R. Pallmeyer, United States District Judge for the Northern District of Illinois, sitting by designation.
** Judge Smith was drawn to replace Judge Pamela A. Rymer on the panel following Judge Rymer's untimely death. Judge Smith has read the briefs, reviewed the record and listened to the tape of oral argument.
1. Because Yoo appeals from the district court's denial of a motion to dismiss, we recite the facts as they appear in the plaintiffs' first amended complaint. See Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.2010) ("We accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party."). We emphasize that this factual background is based only on the allegations of the plaintiffs' complaint. Whether the plaintiffs' allegations are in fact true has not been decided in this litigation, and nothing we say in this opinion should be understood otherwise.
2. The President's memorandum, which the plaintiffs attached to their complaint, is part of the record for purposes of Yoo's motion to dismiss. See Daniels-Hall, 629 F.3d at 998.
3. The court granted Yoo's motion to dismiss in one respect, agreeing with Yoo that the complaint did not state a claim for violation of Padilla's Fifth Amendment right against self-incrimination because Padilla was never made to be a witness against himself and his statements were never admitted as testimony against him in a criminal case. See Padilla, 633 F.Supp.2d at 1035-36. The plaintiffs did not appeal that ruling. In all respects relevant to this appeal, the court denied Yoo's motion.
4. In 2002, the United States District Court for the Southern District of New York ruled on Padilla's first federal habeas petition, in which Padilla's counsel, despite having no contact with Padilla, challenged Padilla's designation and detention as an enemy combatant. See Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564 (S.D.N.Y.2002). The district court concluded that the post-September 11th Authorization for Use of Military Force, Pub.L. No. 107-40, 115 Stat. 224 (2001), permitted American citizens to be detained without charge as enemy combatants, but that Padilla had a right both to counsel and to a judicial forum in which to challenge the factual basis of his detention. See Padilla, 233 F.Supp.2d at 569-70. The Second Circuit reversed on the first point, holding that only a clear congressional statement could authorize the detention of an American citizen without charge. See Padilla v. Rumsfeld, 352 F.3d 695, 698 (2d Cir.2003). In June 2004, the Supreme Court reversed the Second Circuit on a jurisdictional ground, ruling that Padilla's habeas petition should have been filed in South Carolina, where he was detained, rather than New York, where he had been seized. See Rumsfeld v. Padilla, 542 U.S. 426, 451, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004).
Padilla then filed his habeas petition in South Carolina. There, the U.S. District Court for the District of South Carolina granted the petition, ruling that Padilla's detention violated the Constitution and laws of the United States and that he therefore had to be either criminally charged or released. See Padilla v. Hanft, 389 F.Supp.2d 678, 692 (D.S.C.2005). The Fourth Circuit reversed, holding that the government could detain citizens without charge, even if seized within the United States, if they have carried arms against the U.S. in a foreign combat zone, as Padilla allegedly did. See Padilla v. Hanft, 423 F.3d 386, 389-92 (4th Cir.2005). After Padilla petitioned for certiorari, and shortly before the government's response was due, the government transferred him to civilian custody and initiated criminal proceedings against him in the United States District Court for the Southern District of Florida, arguably mooting the petition. See Padilla v. Hanft, 432 F.3d 582, 584, 587 (4th Cir.2005) (order) (denying government's request for transfer); Hanft v. Padilla, 546 U.S. 1084, 1084-85, 126 S.Ct. 978, 163 L.Ed.2d 721 (2006) (granting the request). The Supreme Court thereafter denied certiorari, without reaching the merits of Padilla's South Carolina habeas petition. See Padilla v. Hanft, 547 U.S. 1062, 126 S.Ct. 1649, 164 L.Ed.2d 409 (2006).
5. But see Hamdi, 542 U.S. at 595, 124 S.Ct. 2633 (Thomas, J., dissenting) (concluding that the government has an interest in "detaining an enemy soldier not only to prevent him from rejoining the ongoing fight" but also "to gather critical intelligence regarding the intentions and capabilities of our adversaries").
6. In describing these standards, Hamdi made no express distinction between "[t]he capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants." Hamdi, 542 U.S. at 518, 124 S.Ct. 2633 (emphasis added).
7. This statement in Hamdi referred to detainees' procedural rights, not their substantive rights, and we do not read the statement as either suggesting or foreclosing the possibility that citizens detained as enemy combatants have lesser substantive constitutional rights than other types of detainees. Cf. Vance v. Rumsfeld, 653 F.3d 591, 610-11 (7th Cir. 2011) (observing that Hamdi addressed a question of procedural due process rather than substantive due process), reh'g en banc granted and opinion vacated (Oct. 28, 2011). We do observe, however, that the Supreme Court has in other contexts suggested the possibility that substantive rights too may vary according to the circumstances of the detention at issue. See Youngberg, 457 U.S. at 321-22, 102 S.Ct. 2452 ("Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." (emphasis added)). For our purposes it is sufficient to say that it was not clearly established in 2002 that United States citizens detained as enemy combatants possessed the same substantive due process rights as other types of detainees.
8. Whereas convicted prisoners are detained for purposes of "retribution, deterrence, incapacitation, and rehabilitation," Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011, 2028, 176 L.Ed.2d 825 (2010), the President ordered Padilla detained to "prevent him from aiding al Qaeda in its efforts to attack the United States," and as a source of "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." Memorandum from President George W. Bush to the Secretary of Defense (June 9, 2002). In the absence of clear guidance from the courts, a reasonable official could have had some reason to believe that these circumstances justified affording an enemy combatant lesser constitutional and statutory protections than ordinary convicted prisoners. Some courts have been sympathetic to such rationales. See Padilla v. Hanft, 423 F.3d 386, 395 (4th Cir.2005) (noting that military detention might be necessary to serve a governmental interest in restricting a detainee's "communication with confederates so as to ensure that the detainee does not pose a continuing threat to national security even as he is confined"); Lebron v. Rumsfeld, 764 F.Supp.2d 787, 805 (D.S.C.2011) (observing that burdens on a detainee's religious observation might have served "the arguably compelling state interest in obtaining control over a critical subject during his interrogation ... [or] the governmental interest in sustained interrogation over multiple hours to obtain the critical information sought").
9. That substantive due process under the Fifth Amendment prohibits the government from engaging in conduct that "shocks the conscience" has long been clearly established. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846-47, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (collecting cases). What has not been clearly established is how that standard applies to citizens detained as enemy combatants.
10. As the State Department reported in February 2000:
6. Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory....
49. Torture has always been proscribed by the Eighth Amendment to the United States Constitution, which prohibits "cruel and unusual punishments".... [T]he protections of the right to life and liberty, personal freedom and physical integrity found in the Fourth, Fifth and Eighth Amendments to the United States Constitution provide a nationwide standard of treatment beneath which no governmental entity may fall. The constitutional nature of this protection means that it applies to the actions of officials throughout the United States at all levels of government; all individuals enjoy protection under the Constitution, regardless of nationality or citizenship ...
112. Because the Eighth Amendment by its terms applies to "punishments", courts have looked to other constitutional provisions, in particular the Fourth Amendment's protections against unreasonable searches and seizures and the due process requirements of the Fifth and Fourteenth Amendments, to preclude the abuse or ill-treatment of individuals in other custodial circumstances. These constitutional protections are applicable and enforced at all levels of government.
Initial Report of the United States of America to the United Nations Committee Against Torture ¶¶ 6, 49, 112, U.N. Doc. CAT/C/28/Add.5 (Feb. 9, 2000) (emphasis added), available at http://www.state.gov/documents/organization/ 100296.pdf (an initial report of the United States' compliance with the Convention Against Torture); see also Ali v. Rumsfeld, 649 F.3d 762, 781-82 (D.C.Cir.2011) (Edwards, J., dissenting in part) (cataloguing United States prohibitions on torture from the nineteenth century through the present day); Arar v. Ashcroft, 585 F.3d 559, 598 (2d Cir.2009) (en banc) (Sack, J., dissenting) ("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), rev'd on other grounds sub nom Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002))); cf. Vance, 653 F.3d at 606 ("On what conceivable basis could a U.S. public official possibly conclude that it was constitutional to torture U.S. citizens?"), reh'g en banc granted and opinion vacated (Oct. 28, 2011).
11. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States signed in 1988 and ratified in 1990, defines torture as:[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1(1), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (emphasis added). Similarly, the federal statute criminalizing torture that occurs abroad, 18 U.S.C. § 2340A, defines torture as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." Id. § 2340(1) (emphasis added). Section 2340 further defines "severe mental pain or suffering" as
the prolonged mental harm caused by or resulting from—(A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
Id. § 2340(2) (emphasis added). The Torture Victim Protection Act (TVPA), Pub.L. No. 102-256, § 3(b), 106 Stat. 73 (1991), 28 U.S.C. § 1350 note, which provides a civil tort remedy for victims of torture, employs a similar definition of torture.
12. The court described wall-standing as a "stress position" in which detainees were forced to stand spread-eagled against a wall with their feet back away from the wall, causing all of their weight to be borne by the fingers and toes. Hooding was the practice of keeping detainees' heads and faces covered by an opaque hood whenever they were not being interrogated. Subjection to noise involved keeping detainees in a room in which there was a continuous loud hissing noise. The court described deprivation of food and drink as keeping the detainees on a "reduced diet" during their stay at the interrogation centers (which lasted for several days but seldom exceeded one week).
13. The court defined "shaking," considered the harshest of the challenged interrogation techniques, "as the forceful shaking of the suspect's upper torso, back and forth, repeatedly, in a manner which causes the neck and head to dangle and vacillate rapidly." Id. at 1474. Evidence was submitted that "the shaking method is likely to cause serious brain damage, harm the spinal cord, cause the suspect to lose consciousness, vomit and urinate uncontrollably and suffer serious headaches." Id. The stress positions used, including the "Shabach" position and the "Frog Crouch," were alleged to cause "serious muscle pain in the arms, the neck and headaches." Id. at 1475. The court also considered allegations of excessively tight hand or leg cuffs, which allegedly "result[] in serious injuries to the suspect's hands, arms and feet." Id. Sleep deprivation was also alleged. Applicants "complained of being deprived of sleep as a result of being tied in the `Shabach' position, being subjected to the playing of powerfully loud music, or intense non-stop interrogations without sufficient rest breaks. They claim that the purpose of depriving them of sleep is to cause them to break from exhaustion." Id. at 1476.
14. The court, however, remanded to allow the plaintiffs to attempt to amend their complaint in an effort to satisfy the stringent definition of torture. See Price, 294 F.3d at 94.
15. Recent decisions may offer support for this assumption. In Ali v. Rumsfeld, 649 F.3d 762 (D.C.Cir.2011), four Afghan and five Iraqi citizens captured and held in Afghanistan and Iraq by the U.S. military sued former Secretary of Defense Rumsfeld and three high-ranking Army officers, alleging the plaintiffs were tortured in violation of the Due Process Clause of the Fifth Amendment. See id. at 764-66. They alleged they were beaten, stripped naked, hooded, exposed to dangerously high temperatures, subjected to prolonged sleep deprivation, deprived of adequate food and water, subjected to mock executions and death threats, subjected to sensory deprivation, placed in restraints and stress positions, sexually assaulted and denied necessary medical care. See id. at 765-66. The majority did not address whether the plaintiffs' allegations rose to the level of torture. In a dissenting opinion, however, Judge Edwards, though observing that "[t]he definition of torture is a matter of some controversy," assumed without deciding "that the offenses articulated in the [plaintiffs'] complaint constituted torture"—in part because the government did not dispute the plaintiffs' assertion in its brief. Id. at 785 (Edwards, J., dissenting in part).
In Vance v. Rumsfeld, which the Seventh Circuit has vacated and agreed to rehear en banc, the plaintiffs were two United States citizens who alleged they were detained for weeks and illegally tortured by U.S. military personnel in Iraq in 2006. See 653 F.3d at 594. They alleged that the lights were kept on at all times in their cells; their cells were kept intolerably cold; guards would wake them if they were ever caught sleeping; heavy metal and country music was pumped into their cells at loud volumes; they were often deprived of food and water; they were repeatedly deprived of necessary medical care; they experienced "hooding"; they were "walled," i.e., slammed into walls while being led blindfolded with towels placed over their heads to interrogation sessions; they were threatened with excessive force and indefinite detention; their contact with their families was limited; one of the plaintiff's requests for clergy visits were denied; and they were forbidden to correspond with a lawyer or a court. See id. at 595-97. The three-judge panel held that any reasonable official in 2006 would have understood this treatment to amount to torture. See id. at 610. The government effectively conceded that the allegations amounted to torture. See id. at 607.
In a less comparable case, Arar v. Ashcroft, 585 F.3d 559 (2d Cir.2009) (en banc), a dual citizen of Syria and Canada challenged his extraordinary rendition to Syria. The plaintiff alleged violations of his substantive due process rights under the Fifth Amendment, in part based on his alleged detention and torture in Syria. The majority rejected the plaintiff's claim under Bivens, and thus did not decide whether the plaintiff's treatment in Syria amounted to torture or otherwise violated substantive due process. The dissent, however, deemed the plaintiff's treatment to be torture. The dissent described the most serious allegations as follows:
During his first twelve days in Syrian detention, Arar was interrogated for eighteen hours per day and was physically and psychologically tortured. He was beaten on his palms, hips, and lower back with a two-inch-thick electric cable. His captors also used their fists to beat him on his stomach, his face, and the back of his neck. He was subjected to excruciating pain and pleaded with his captors to stop, but they would not. He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a spine-breaking "chair," hung upside down in a "tire" for beatings, and subjected to electric shocks. To lessen his exposure to the torture, Arar falsely confessed, among other things, to having trained with terrorists in Afghanistan, even though he had never been to Afghanistan and had never been involved in terrorist activity.
Id. at 587 (Sack, J., dissenting).
16. We have discretion to decide which of the two prongs of qualified immunity analysis to address first. See al-Kidd, 131 S.Ct. at 2080 (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Here, we consider only the second prong.
17. The Department of Justice investigation produced two reports. See Dep't of Justice, Office of Prof'l Responsibility, Report of Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists 260 (July 29, 2009) (concluding that Yoo committed "intentional professional misconduct"), available at http://judiciary.house.gov/hearings/pdf/ OPRFinalReport090729.pdf; David Margolis, Memorandum of Decision Regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility's Report 67, 68 (Jan. 5, 2010) (concluding that Yoo "exercised poor judgment" but did not "knowingly provide inaccurate legal advice"), available at http:// judiciary.house.gov/hearings/pdf/ DAGMargolisMemo100105.pdf.
|
|