On May 2nd, the Ninth Circuit ruled in favor of the defendant in the case of Padilla v. Yoo; the decision was a reversal of an earlier ruling by the district court. Mr. Padilla was suing Mr. Yoo, who served as a lawyer under the Bush administration and is now on the faculty at UC-Berkley School of Law. In 2002, when Mr. Yoo served as Deputy Assistant Attorney General in the Justice Department’s Office of Legal Counsel, he wrote several memos that authorized the treatment of Mr. Padilla, who had been arrested at O’Hare in Chicago. Mr. Padilla alleged that the treatment he received during his time in detention was torture, and began his suit against Mr. Yoo in 2008 (he was convicted as a terrorist in 2007). The decision states that “…it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.”
For those who lack familiarity with how the US legal system regards torture, a short background:
Since at least the 1890s, the US Supreme Court has held that torture of American citizens is unconstitutional, because it violates the Eighth Amendment, which prohibits the use of “cruel and unusual” punishments. Torture is also prohibited under Title 18 of the United States Code, §2340. As defined under United States Code, torture is an act that is designed to inflict severe physical or mental pain or suffering. Despite the protections against torture afforded to criminals by both the Constitution and the United States Code, the Military Commissions Act of 2006 authorized “enemy combatants” to be held indefinitely without judicial review under the terms of habeus corpus, and for military tribunals to be held of these persons.
Under the act, techniques used to extract evidence from enemy combatants are not limited by the Geneva Conventions and can be used in the military tribunals. In essence, the act permits torture, as long as the person being tortured is defined as an unlawful enemy combatant, either because they have committed acts of violence against America – without being part of a state recognized and organized belligerent group – or because they have been declared as such by a Combatant Status Review Tribunal or another tribunal. These tribunals are directly established by the president.
After being arrested on May 9th 2002, Mr. Padilla was originally detained, and then classified as an enemy combatant by President Bush on June 9th; at that point, he was taken to a military brig in South Carolina under high secrecy. However, because of the fact that Mr. Padilla was and is an American citizen, the provisions of the Military Commissions Act of 2006 do not apply, since the act only discusses the alien unlawful enemy combatants. Nevertheless, Mr. Yoo drafted three memos, each approved by Assistant Attorney General Jay Bybee, a member of the Ninth Circuit since 2003, that interrogation tactics such as sleep deprivation, stress positions, waterboarding, and other techniques commonly regarded as torture were permissible. In order to justify this conclusion, the language of Title 18 §2340 was examined in the most minute detail.
In 2009, U.S. District Judge Jeffrey White of San Francisco ruled against Mr. Yoo, and opened the door for him to be personally sued by Mr. Padilla for authoring the so-called “Torture Memos.” The Ninth Circuit’s reversal of this ruling was celebrated yesterday by Mr. Yoo himself in an article in the Wall Street Journal. In the article, Mr. Yoo paints a dire picture of justice gone amuck, with presidentially supported legal investigations brought by terrorists penetrating the highest levels of the government as the consequence of a ruling in Mr. Padilla’s favor. However, others are less complimentary. A website called FIRE JOHN YOO! is the 5th Google result for his name, and criticizes, among other things, the “cover your as*” legal reasoning used to protect Mr. Yoo.
The controversy stirred up by this ruling is unlikely to die down anytime soon, with various high profile names alternately affirming and condemning the decision. It certainly raises big ethical questions, both for the legal field and for the general American public and the government which represents them. Is “torture” a relative or absolute term? How do we handle terrorist threats which originate from our own soil? When does a citizen cede their rights, if ever? Who can and/or should be held responsible for these decisions? While the case has been settled, these questions will surely resonate within the fabric of the justice system, the military, the government, and American culture at large for quite some time.