I don't think today's Ninth Circuit decision throwing out Jose Padilla's damages suit against John Yoo is particularly surprising--notwithstanding the typical (albeit utterly and alarmingly inaccurate) trope about the liberal Ninth Circuit. That doesn't mean that the suit was "baseless" or represents "harassment," contra Miguel Estrada, but I'll save my gripe about that distinction for another time. Here, I'd like to flag two central issues with the decision that, in my view, are worth reflecting upon:
I. The Logical Leap at the Core of Judge Fisher's Analysis
Just to be clear, the centerpiece of the panel's conclusion that Yoo is entitled to qualified immunity is its conclusion that it wasn't clearly established between 2001 and 2003 whether the conduct Padilla alleges was in fact torture, or was instead "merely" CIDT--cruel, inhuman, or degrading treatment. If it was the former, the panel agrees that Yoo would not be entitled to qualified immunity because the underlying conduct "shocks the conscience." The implication is that if it was the latter, then Yoo would be entitled to qualified immunity because it was not clear between 2001 and 2003 that conduct that merely amounted to CIDT also shocks the conscience...
The problems with this analysis are two-fold:
First, the panel never actually explains why it wasn't clear between 2001 and 2003 that CIDT "shocks the conscience." Indeed, the evidence they marshal only goes to confirming the proposition that it was clear that torture "shocks the conscience." If, contra the panel, it was also clear that CIDT did, as well, then it wouldn't matter whether Padilla was tortured or was instead "only" subjected to CIDT. To me, this is the whole ballgame--and the panel totally leaps from the conclusion that it wasn't clearly torture to the conclusion that it therefore did not clearly "shock the conscience." There's a step (or three) missing in there--and analysis that's pretty important (or would be, if it were undertaken), going forward.
Second, even if the panel could have mustered support for the argument that it wasn't clear between 2001 and 2003 that CIDT shocks the conscience, everything would then rise and falls on the torture/CIDT distinction--and whether it was clear from 2001-03 on which side of the line the alleged mistreatment of Padilla fell. And here's what the panel has to say on this (essential) point:
We assume without deciding that Padilla’s alleged treatment rose to the level of torture. That it was torture was not, however, “beyond debate” in 2001-03. There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques. In light of that debate, as well as the judicial decisions discussed above, we 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. 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.
In other words, (1) it wasn't clear from 2001-03 that CIDT "shocks the conscience"; (2) Padilla's mistreatment was not as severe as prior cases in which courts had recognized a torture claim; (3) it therefore wasn't clear whether Padilla's mistreatment was torture or CIDT; (4) it therefore wasn't clear that Padilla's mistreatment "shocks the conscience."
Thus, the panel's approach is basically that the mistreatment here falls between conduct that prior courts (including the Ninth Circuit) had held to be torture and conduct that prior courts had held to be merely CIDT. Because Padilla's mistreatment was less severe than prior examples of torture, and more severe than prior examples of CIDT, it's just not "clear" on which side of the torture/CIDT line Padilla's mistreatment falls... Of course, the fact that A > B > C proves nothing about where B is. And under Hope v. Pelzer, the question in qualified immunity cases is not whether the plaintiff can prove that the defendant's conduct was at least as bad as something already acknowledged to be unlawful. As Justice Stevens explained, it isn't the case that "an official action is protected by qualified immunity unless the very action in question has previously been held unlawful." Instead, "in the light of pre-existing law[,] the unlawfulness must be apparent.”
Perhaps the panel would have reached the same result had they not skipped these steps. But to my mind, these are fairly significant omissions...
II. The Pearson Problem
But even if you're less bothered by these omissions than I am, there's a separate issue framed quite nicely by footnote 16--that, even though the panel clearly believes Padilla was mistreated, they don't have to actually hold as much, thanks to Pearson v. Callahan, which overruled the so-called "Saucier sequence," and allows courts to assume without deciding that the officer's conduct was unlawful if they conclude that the unlawfulness wasn't clearly established. (Under Saucier, courts had to formally decide both the "legality" and "liability" questions, and so even where an officer ultimately received immunity, the law would be clarified going forward.)
I've written before about the damage Pearson does to law formation, and why it's especially pronounced in national security cases, but here is Exhibit A: This would have been the perfect case in which to lay down forward-looking principles about the constitutional limits on the treatment of U.S. citizens, even when detained as "enemy combatants"--especially because the court nevertheless holds that Yoo shouldn't be held liable. Indeed, the panel already did most of the leg-work to reach this question in explaining why the relevant law wasn't clearly established. Rather than go the last step of establishing the law going forward, they punt.
To be sure, the next Padilla can point to the McCain Amendment to the Detainee Treatment Act, which makes clear that CIDT violates U.S. law even in the context of military detention. But that's just a statute... Here was a golden opportunity to make positive constitutional law going forward, and after all that work, the panel ducked. That's the problem with Pearson in a nutshell... For even if reasonable people disagree about whether the relevant law was clearly established from 2001 to 2003, can't we agree that it would be helpful going forward to know what the law actually is?