Last year, the Ninth Circuit Court of Appeals held that recent U.S. Supreme Court precedent compelled it to conclude that federal officials were entitled to qualified immunity for the treatment of enemy combatants detained after the September 11, 2001 terrorist attacks, because the law was not clearly established at the time.

In May 2002, Jose Padilla, also known as Abdullah al-Muhajir, was detained on a material witness warrant. President George W. Bush then issued a June 9, 2002 order declaring Padilla an "enemy combatant" for allegedly plotting a "dirty bomb" attack. As a result, Padilla was held in military custody for three-and-a-half years. He was denied all contact with family and legal counsel for 21 months.

Padilla was later tried on federal criminal charges unrelated to the "dirty bomb" allegations used to justify his military detention. A jury convicted him in August 2007 and the Eleventh Circuit affirmed his conviction but vacated his 208-month prison sentence as being "unreasonably low." See: United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011).

Meanwhile, in February 2007, Padilla and his mother, Estela Lebron, filed a federal lawsuit against former Secretary of Defense Donald Rumsfeld, former Attorney General John Ashcroft and 11 other government officials. The district court granted qualified immunity to the defendants in Lebron v. Rumsfeld, 764 F.Supp.2d 787 (D.S.C. 2011), and the Fourth Circuit affirmed in Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012).

Additionally, in January 2008, two years after Padilla's military detention ended, he and his mother filed a similar lawsuit against Deputy Assistant Attorney General John Yoo in a California federal court.

They alleged that Padilla was imprisoned without charge or the ability to defend himself. Padilla also claimed that he was subjected to "gross physical and psychological abuse upon the orders of high-ranking government officials as part of a systematic program of abusive interrogation mirroring the alleged abuses committed at Guantanamo Bay, including extreme isolation; interrogation under threat of torture, deportation and even death; prolonged sleep adjustment and sensory deprivation; exposure to extreme temperatures and noxious odors; denial of access to necessary medical and psychiatric care; substantial interference with his ability to practice his religion; and incommunicado detention for almost two years, without access to family, counsel or the courts."

The complaint alleged that Yoo, now a professor at UC Berkeley School of Law, had "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."

The district court denied Yoo's motion to dismiss on qualified immunity grounds, finding "that the complaint alleged violation of clearly established constitutional and statutory rights." See: Padilla v. Yoo, 633 F.Supp.2d 1005 (N.D. Cal. 2009).

On appeal, the Ninth Circuit first elected "to treat the Fourth Circuit's decision [in Lebron] as persuasive precedent rather than affording it preclusive effect."

The appellate court then noted that "[t]he outcome of this appeal is governed by the Supreme Court's decision in Ashcroft v. al-Kidd, 131 S.Ct. 2074 (2011)," which was decided after the district court's order on Yoo's motion to dismiss.

In Ashcroft, the Court noted that a "Government official's conduct violates clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'"

The Ashcroft ruling found that the defendant in that case, former Attorney General John Ashcroft, "did not violate clearly established law by allegedly authorizing federal prosecutors to use material witness arrest warrants, supported objectively by reasonable suspicion, as a pretext for detaining terrorism suspects."

The Ninth Circuit ultimately held that the law was not sufficiently clear at the time of Padilla's military detention that he "was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal."

Padilla argued 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," even in the absence of case law that clearly establishes the wrongfulness of such conduct. However, the Court of Appeals found that Yoo was entitled to qualified immunity because it was not clearly established at the time that Padilla's treatment constituted torture.

"[W]e cannot say that any reasonable official in 2001-03 would have known that the specific interrogation techniques allegedly employed against Padilla, however appalling, necessarily amounted to torture," the Ninth Circuit wrote. "Thus, although we hold that the unconstitutionality of torturing an American citizen was beyond debate in 2001-03, it was not clearly established at that time that the treatment Padilla alleges he was subjected to amounted to torture."

Accordingly, the district court's denial of Yoo's motion to dismiss was reversed. See: Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012).

Subscribe today

Already a subscriber? Login

Related legal case