In 2008, convicted terrorist Jose Padilla sued former Bush administration lawyer John Yoo for writing controversial Justice Department Office of Legal Counsel (OLC) memos justifying the use of torture. The suit said Yoo’s memos, which were signed by OLC head Jay Bybee, provided the legal justifications for what the suit said was Padilla’s unconstitutional confinement and “gross physical and psychological abuse.”
Today, the 9th Circuit Court, of which Jay Bybee is a member, ruled that Yoo is protected from the lawsuit, claiming that the law defining torture and the treatment of enemy combatants was unsettled when Yoo wrote the memos:
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.
Running down the list of torture memos Bybee signed, Marcy Wheeler writes of the 9th Circuit’s decision, “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.”