SAN FRANCISCO John Yoo is off the hook.
A panel of the U.S. Court of Appeals for the Ninth Circuit that included two Democratic appointees ruled Wednesday that the former Bush administration lawyer cannot be sued personally for allegedly authorizing the torture and months-long detention of an American citizen deemed an enemy combatant.
The court ruled that 10 years ago, when Yoo was with Justice Department's Office of Legal Counsel, it was not "beyond debate" that suspected terrorists were entitled to the same constitutional protections as ordinary accused criminals. In fact, the court held, that law remains unsettled to this day.
Thus, Yoo, now a professor at UC-Berkeley School of Law, enjoys qualified immunity from a suit by Jose Padilla, who alleges he was brutalized by the government while being denied access to counsel or his family for 21 months. Although the government dropped the most serious charges against him, Padilla was ultimately convicted in 2007 of conspiring to murder, kidnap and maim people overseas, and was sentenced to 17 years in prison.
"We agree with the plaintiffs that the unconstitutionality of torturing a U.S. citizen was 'beyond debate' by 2001," Judge Raymond Fisher wrote for the unanimous three-judge panel. "Yoo is entitled to qualified immunity, however, because it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture." Ninth Circuit Judge N. Randy Smith and U.S. District Judge Rebecca Pallmeyer of Illinois, sitting by designation, concurred.
Padilla v. Yoo reverses a 2009 decision of U.S. District Judge Jeffrey White of San Francisco. But the Ninth Circuit took some pains to note that a 2011 U.S. Supreme Court decision, Ashcroft v. al-Kidd, had since raised the bar for plaintiffs to get around qualified immunity.
Although political passions run high on the torture issue, and other federal appellate courts that have considered related issues have done so en banc, two law professors familiar with the Ninth Circuit said Wednesday they saw that as unlikely in Padilla.
"I think this is the end of the case," said UC-Hastings professor Rory Little. "Judge Fisher is one of the most well-regarded judges on the Ninth Circuit. There's no dissent. It's doubtful the case will attract en banc attention or Supreme Court review."
UCLA law professor Eugene Volokh noted that Pallmeyer is a Clinton appointee as well. "It's a foreshadowing of the likelihood that more Clinton judges will have the same point of view," he said.
Padilla alleged that he was placed in stress positions, deprived of sleep, exposed to extreme temperatures and threatened with torture and death as part of a systematic program of abusive interrogation. White's decision letting the suit proceed rested in part on Hamdi v. Rumsfeld, a 2004 U.S. Supreme Court decision that said the "state of war is not a blank check for the president when it comes to the rights of the nation's citizens."