Jose Padilla v. John Yoo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE PADILLA and ESTELA LEBRON,  No. 09-16478

Plaintiffs-Appellees,

v.  D.C. No.

3:08-cv-00035-JSW

JOHN YOO,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Argued and Submitted

June 14, 2010—San Francisco, California

Submission vacated October 18, 2010

Resubmitted December 8, 2011

Filed May 2, 2012

Before: Raymond C. Fisher and N. Randy Smith,

Circuit Judges, and Rebecca R. Pallmeyer,

District Judge.*,**

Opinion by Judge Fisher

*The Honorable Rebecca R. Pallmeyer, United States District Judge for

the Northern District of Illinois, sitting by designation.

**Judge Smith was drawn to replace Judge Pamela A. Rymer on the

panel following Judge Rymer’s untimely death. Judge Smith has read the

briefs, reviewed the record and listened to the tape of oral argument.

4505

PADILLA v. YOO 4509

COUNSEL

Miguel A. Estrada (argued) and Scott P. Martin, Gibson,

Dunn & Crutcher LLP, Washington, D.C., for the appellant.

Jonathan M. Freiman (argued), Hope R. Metcalf, Tahlia

Townsend and Amos E. Friedland, New Haven, Connecticut;

Natalie L. Bridgeman, San Francisco, California, for the

appellees.

Paul J. Orfanedes, Washington, D.C., for amicus curiae Judi-

cial Watch, Inc.

Michael F. Hertz, Deputy Assistant Attorney General, Bar-

bara L. Herwig and Robert M. Loeb, U.S. Department of Jus-

tice, Washington, D.C., for amicus curiae United States.

Peter B. Ellis and Usha-Kiran K. Ghia, Foley Hoag LLP, Bos-

ton, Massachusetts, for amici curiae Bruce Fein, Roberts B.

Owen and Michael P. Scharf.

Eric L. Lewis, Baach Robinson & Lewis PLLC, Washington,

D.C.; Elizabeth A. Wilson, John C. Whitehead School of

Diplomacy and International Relations, Seton Hall University,

South Orange, New Jersey, for amici curiae Distinguished

Professors of Constitutional and Federal Courts Law.

Hamid Jabbar, Scottsdale, Arizona; Hirad D. Dadgostar, Los

Angeles, California; Dawinder S. Sidhu, Potomac, Maryland,

for amici curiae Legal Ethics Scholars.

OPINION

FISHER, Circuit Judge:

After the September 11, 2001 attacks on the United States,

the government detained Jose Padilla, an American citizen, as

4510 PADILLA v. YOO

an enemy combatant. Padilla alleges that he was held incom-

municado in military detention, subjected to coercive interro-

gation techniques and detained under harsh conditions of

confinement, all in violation of his constitutional and statutory

rights. In this lawsuit, plaintiffs Padilla and his mother, Estela

Lebron, seek to hold defendant John Yoo, who was the Dep-

uty Assistant Attorney General in the U.S. Department of Jus-

tice’s Office of Legal Counsel (OLC) from 2001 to 2003,

liable for damages they allege they suffered from these

unlawful actions. Under recent Supreme Court law, however,

we are compelled to conclude that, regardless of the legality

of Padilla’s detention and the wisdom of Yoo’s judgments, at

the time he acted the law was not “sufficiently clear that every

reasonable official would have understood that what he [wa]s

doing violate[d]” the plaintiffs’ rights. Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011) (internal quotation marks omit-

ted). 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 rea-

sons. First, although during Yoo’s tenure at OLC the constitu-

tional 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 com-

batant and confined to military detention by order of the Pres-

ident — was entitled to the same constitutional protections as

an ordinary convicted prisoner or accused criminal. Id. Sec-

ond, 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.

PADILLA v. YOO 4511

I. BACKGROUND1

A.

In early May 2002, Padilla was arrested at Chicago O’Hare

International Airport pursuant to a material witness warrant

issued by the United States District Court for the Southern

District of New York. Compl. ¶ 35. He was transported to

New York, where he was held in custody in a federal deten-

tion facility. Id.

On June 9, 2002, President George W. Bush issued an

order declaring Padilla an “enemy combatant” and directing

the Secretary of Defense to take Padilla into military custody.

Compl. ¶ 40. The presidential order asserted that Padilla was

“closely associated with al Qaeda”; that he had “engaged in

conduct that constituted hostile and war-like acts, including

conduct in preparation for acts of international terrorism that

had the aim to cause injury to or adverse effects on the United

States”; that he “possesse[d] intelligence, including intelli-

gence about personnel and activities of al Qaeda, that, if com-

municated to the U.S., would aid U.S. efforts to prevent

attacks by al Qaeda on the United States”; that he “repre-

sent[ed] a continuing, present and grave danger to the national

security of the United States”; and that his detention was

“necessary to prevent him from aiding al Qaeda in its efforts

to attack the United States or its armed forces, other govern-

mental personnel, or citizens.” Memorandum from President

1

Because Yoo appeals from the district court’s denial of a motion to dis-

miss, we recite the facts as they appear in the plaintiffs’ first amended

complaint. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th

Cir. 2010) (“We accept as true all well-pleaded allegations of material

fact, and construe them in the light most favorable to the non-moving

party.”). We emphasize that this factual background is based only on the

allegations of the plaintiffs’ complaint. Whether the plaintiffs’ allegations

are in fact true has not been decided in this litigation, and nothing we say

in this opinion should be understood otherwise.

4512 PADILLA v. YOO

George W. Bush to the Secretary of Defense (June 9, 2002),

reprinted in Padilla v. Hanft, 423 F.3d 386, 389 (4th Cir. 2005).2

In accordance with the President’s order, Padilla was trans-

ferred from the federal detention facility in New York to a

military brig in Charleston, South Carolina, where he was

held in military custody for more than three and a half years,

from June 2002 until January 2006. Compl. ¶¶ 1, 44. For a

substantial portion of this period, from June 2002 until March

2004, government officials denied Padilla all contact with

persons outside the brig, including his family and legal coun-

sel. Compl. ¶ 56.

On January 5, 2006, Padilla was transferred from the mili-

tary brig to a federal detention center in Miami, Florida,

where he stood trial in federal district court on criminal

charges unrelated to the allegations that had been used to jus-

tify his military detention. Compl. ¶ 11. In August 2007, the

jury returned a verdict of guilty. Id. In September 2011, a

divided Eleventh Circuit panel affirmed Padilla’s conviction,

vacated his sentence as unreasonably low and remanded for

resentencing. See United States v. Jayyousi, 657 F.3d 1085,

1117-19 (11th Cir. 2011).

Padilla and his mother, Estela Lebron, filed this civil action

against John Yoo, in his individual capacity, on January 4,

2008, two years after Padilla’s military detention ended. In

their first amended complaint, Padilla and Lebron alleged that

Padilla was imprisoned in the military brig without charge

and without the ability to defend himself or to challenge his

conditions of confinement. Compl. ¶ 1. They alleged that dur-

ing Padilla’s detention, he suffered gross physical and psy-

chological abuse upon the orders of high-ranking government

officials as part of a systematic program of abusive interroga-

2

The President’s memorandum, which the plaintiffs attached to their

complaint, is part of the record for purposes of Yoo’s motion to dismiss.

See Daniels-Hall, 629 F.3d at 998.

PADILLA v. YOO 4513

tion mirroring the alleged abuses committed at Guatanamo

Bay, including extreme isolation; interrogation under threat of

torture, deportation and even death; prolonged sleep adjust-

ment and sensory deprivation; exposure to extreme tempera-

tures 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. Id. They also alleged that Lebron was deprived of vir-

tually all contact with Padilla during his prolonged and alleg-

edly unlawful military detention, in violation of her

constitutional rights to familial association and communica-

tion. Compl. ¶ 2.

The complaint alleged that Yoo is one of several current

and former government officials who abused their high posi-

tions to cause Padilla’s allegedly unlawful military detention

and interrogation. Compl. ¶ 3. From 2001 to 2003, Yoo was

Deputy Assistant Attorney General at OLC. Compl. ¶ 13.

Padilla and Lebron alleged that Yoo set in motion Padilla’s

allegedly illegal interrogation and detention, both by formu-

lating unlawful policies for the designation, detention and

interrogation of suspected “enemy combatants” and by issu-

ing legal memoranda designed to evade legal restraints on

those policies and to immunize those who implemented them.

Compl. ¶ 3. They alleged that, in doing so, Yoo abdicated his

ethical duties as a government attorney and abandoned his

office’s tradition of providing objective legal advice to the

President. Id.

The complaint alleged that Yoo 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. Compl. ¶ 15. It alleged that Yoo shaped

government policy in his role as a key member of a small,

secretive and highly influential group of senior administration

officials known as the “War Council,” which met regularly

“to develop policy in the war on terrorism.” Id. It alleged that

4514 PADILLA v. YOO

Yoo acted outside the scope of his employment at OLC by

taking instructions directly from White House Counsel

Alberto Gonzales and providing Gonzales with verbal and

written advice without first consulting Attorney General John

Ashcroft. Compl. ¶ 16. The complaint alleged that, in his role

as the de facto head of war-on-terrorism legal issues, Yoo

wrote and promulgated a series of memoranda that ultimately

led to Padilla’s allegedly unlawful treatment, including:

• An October 23, 2001 memorandum from Yoo to Gon-

zales and Department of Defense General Counsel William J.

Haynes regarding Authority for Use of Military Force to

Combat Terrorist Activities Within the United States, which

concluded that “the Fourth Amendment had no application to

domestic military operations,” and that “restrictions outlined

in the Fifth Amendment simply do not address actions the

Executive takes in conducting a military campaign against the

nation’s enemies.”

• A December 21, 2001 memorandum from Yoo to Haynes

regarding Possible Criminal Charges Against American Citi-

zen Who Was a Member of the Al Qaeda Terrorist Organiza-

tion or the Taliban Militia.

• A January 9, 2002 draft memorandum from Yoo to

Haynes on the Application of Treaties and Laws to al Qaeda

and Taliban Detainees.

• A January 22, 2002 memorandum to Gonzales signed by

then-Assistant Attorney General Jay Bybee but allegedly

drafted by Yoo on the Application of Treaties and Laws to al

Qaeda and Taliban Detainees.

• A February 26, 2002 memorandum to Haynes signed by

Bybee but allegedly created by Yoo on Potential Legal Con-

straints Applicable to Interrogations of Persons Captured by

U.S. Armed Forces in Afghanistan.

PADILLA v. YOO 4515

• A May 2002 OLC memorandum regarding access to

counsel and legal mail by detainees held at the naval brigs at

Norfolk and Charleston.

• A June 27, 2002 memorandum from Yoo to Assistant

Attorney General Daniel J. Bryant of the Office of Legislative

Affairs regarding The Applicability of 18 U.S.C. Sec. 4001(a)

to Military Detention of United States Citizens.

• An August 1, 2002 memorandum to Gonzales, again

signed by Bybee but allegedly created by Yoo, on Standards

of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A,

concluding that an interrogation technique must cause damage

that rises “to the level of death, organ failure, or the perma-

nent impairment of a significant body function” in order to be

considered torture.

• A second memorandum produced during August 2002

addressing the legality of particular interrogation techniques

that the CIA wished to employ.

• A November 27, 2002 memorandum from Haynes that

Yoo allegedly reviewed and approved, recommending that

Secretary of Defense Donald Rumsfeld approve for use by the

military a range of aggressive interrogation techniques not

permitted by the military field manual.

• A March 14, 2003 opinion from Yoo to Haynes on Mili-

tary Interrogation of Alien Unlawful Combatants Held Out-

side the United States, extending authority to use harsh

interrogation techniques against high-level prisoners held at

Guantanamo Bay and other facilities under Department of

Defense control, and approving the use of mind-altering drugs

during interrogations. Compl. ¶¶ 19-20.

The complaint alleged that these memoranda advised that

there were no legal constraints on the Executive’s policies

with respect to the detention and interrogation of suspected

4516 PADILLA v. YOO

terrorists. Compl. ¶ 21. It alleged that the memoranda “did not

provide the fair and impartial evaluation of the law required

by OLC tradition and the ethical obligations of an attorney to

provide the client with an exposition of the law adequate to

make an informed decision.” Compl. ¶ 22. Rather, it alleged

that Yoo “intentionally used the Memos to evade well-

established legal constraints and to justify illegal policy

choices that he knew had already been made — sometimes by

virtue of his own participation in the War Council.” Compl.

¶ 23.

The complaint also alleged that Yoo personally participated

in Padilla’s unlawful military detention. Quoting from Yoo’s

book, it alleged that Yoo “personally ‘reviewed the material

on Padilla to determine whether he could qualify, legally, as

an enemy combatant, and issued an opinion to that effect.’ ”

Compl. ¶ 38. It alleged that Ashcroft relied on Yoo’s opinion

in recommending to the President that Padilla be taken into

military custody. Comp. ¶ 39.

The complaint alleged that Padilla’s designation as an

enemy combatant, military detention, conditions of confine-

ment and program of interrogation violated his rights to pro-

cedural and substantive due process, not to be subjected to

cruel or unusual punishment or treatment that shocks the con-

science, to freely exercise his religion, of access to informa-

tion, to association with family members and friends, of

access to legal counsel, of access to the courts, against com-

pelled self-incrimination and against arbitrary and unconstitu-

tional seizure and military detention. Compl. ¶ 5. It alleged

violations of the First, Fourth, Fifth, Sixth and Eighth Amend-

ments to the United States Constitution, Article III of the

Constitution, the Habeas Suspension and Treason Clauses of

the Constitution and the Religious Freedom Restoration Act

(RFRA), 42 U.S.C. § 2000bb. Compl. ¶ 82.

The complaint sought two remedies: a declaration that

Padilla’s treatment violated the Constitution and RFRA, and

PADILLA v. YOO 4517

nominal money damages of one dollar. The plaintiffs subse-

quently agreed to dismiss their claims for declaratory relief,

leaving only a claim for nominal damages.

B.

Yoo moved to dismiss the action for failure to state a claim

upon which relief could be granted. See Fed. R. Civ. P.

12(b)(6). He argued that the complaint failed to state a claim

for money damages on three grounds. First, he argued that the

plaintiffs could not state an action for damages because

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), which recognized an implied

cause of action for damages against federal officials under

some circumstances, did not apply. Second, Yoo argued that

he was entitled to qualified immunity because the complaint

failed to allege facts sufficient to establish his personal

responsibility for the constitutional and statutory violations

alleged in the complaint. Third, Yoo argued that he was enti-

tled to qualified immunity because the complaint failed to

allege a violation of clearly established constitutional or statu-

tory rights.

The district court denied Yoo’s motion. See Padilla v. Yoo,

633 F. Supp. 2d 1005 (N.D. Cal. 2009).3 The court concluded

that the plaintiffs could pursue a Bivens action, that the com-

plaint adequately alleged Yoo’s personal responsibility for

Padilla’s treatment and, as relevant here, that the complaint

alleged violations of clearly established constitutional and

statutory rights. See id. at 1030, 1032-34, 1036-39.

3

The court granted Yoo’s motion to dismiss in one respect, agreeing

with Yoo that the complaint did not state a claim for violation of Padilla’s

Fifth Amendment right against self-incrimination because Padilla was

never made to be a witness against himself and his statements were never

admitted as testimony against him in a criminal case. See Padilla, 633 F.

Supp. 2d at 1035-36. The plaintiffs did not appeal that ruling. In all

respects relevant to this appeal, the court denied Yoo’s motion.

4518 PADILLA v. YOO

With respect to this last issue, the district court acknowl-

edged Yoo’s argument that, at the time of Yoo’s tenure at

OLC, “no federal court ha[d] afforded an enemy combatant

the kind of constitutional protections Padilla seeks in this

case,” and that “courts ha[d] never attributed the level of con-

stitutional rights sought in this action” to enemy combatants

— a “unique type of detainee.” Id. at 1036. But the court con-

cluded that the complaint nonetheless alleged violations of

clearly established law because “the basic facts alleged in the

complaint clearly violate the rights afforded to citizens held

in the prison context,” and because all detainees, including

enemy combatants, must be afforded at least the rights to

which convicted prisoners are entitled. Id. at 1036-38 (empha-

sis added). The court explained:

[A]lthough the legal framework relating to the desig-

nation of a citizen as an enemy combatant was

developing at the time of the conduct alleged in the

complaint, federal officials were cognizant of the

basic fundamental civil rights afforded to detainees

under the United States Constitution. The Court

finds that the complaint alleges conduct that would

be unconstitutional if directed at any detainee, and

therefore finds that the rights allegedly violated were

clearly established at the time of the alleged conduct.

Id. at 1037-38 (citations and footnote omitted).

The court accordingly concluded that Yoo was not entitled

to qualified immunity and denied Yoo’s motion to dismiss.

The crux of the district court’s decision for purposes of this

appeal is its assumption that any reasonable official would

have understood in 2001-03 that United States citizen enemy

combatants in military detention must be afforded at least the

constitutional and statutory rights afforded to ordinary prison

inmates.

PADILLA v. YOO 4519

C.

Of relevance, a different federal district court reached a

contrary result in a related case. In February 2007, Padilla and

Lebron filed an action similar to this one in the United States

District Court for the District of South Carolina against for-

mer Secretary of Defense Rumsfeld, former Attorney General

Ashcroft, 11 other current or former government officials and

unnamed Doe defendants, including the individuals allegedly

responsible for Padilla’s interrogation at the military brig. In

February 2011, the district court dismissed the South Carolina

case for failure to state a claim, in part concluding that the

defendants were entitled to qualified immunity because the

complaint failed to allege that Padilla’s treatment violated

clearly established law. See Lebron v. Rumsfeld, 764 F. Supp.

2d 787 (D.S.C. 2011).

First, the court rejected the proposition that Padilla’s desig-

nation as an enemy combatant and consequential military

detention violated his clearly established constitutional rights.

See id. at 802-03. The court noted that President Bush had

signed the order designating Padilla as an enemy combatant

in June 2002, and that courts had reached inconsistent conclu-

sions as to whether Padilla’s designation and detention were

lawful.4 The court said:

4

In 2002, the United States District Court for the Southern District of

New York ruled on Padilla’s first federal habeas petition, in which Padil-

la’s counsel, despite having no contact with Padilla, challenged Padilla’s

designation and detention as an enemy combatant. See Padilla ex rel.

Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002). The district court

concluded that the post-September 11th Authorization for Use of Military

Force, Pub. L. No. 107-40, 115 Stat. 224 (2001), permitted American citi-

zens to be detained without charge as enemy combatants, but that Padilla

had a right both to counsel and to a judicial forum in which to challenge

the factual basis of his detention. See Padilla, 233 F. Supp. 2d at 569-70.

The Second Circuit reversed on the first point, holding that only a clear

congressional statement could authorize the detention of an American citi-

zen without charge. See Padilla v. Rumsfeld, 352 F.3d 695, 698 (2d Cir.

4520 PADILLA v. YOO

In light of this quite extraordinary litigation history,

the remarkable circumstances regarding the Presi-

dent’s direct written order designating Padilla an

enemy combatant, and the President’s direction to

subordinate officials to detain Padilla, it is hard for

the Court to imagine a credible argument that the

alleged unlawfulness of Padilla’s designation as an

enemy combatant and detention were “clearly estab-

lished” at that time. The strikingly varying judicial

decisions appear to be the very definition of unset-

tled law, and the Fourth Circuit’s order, which is the

law of the case, actually finds the detention and des-

ignation lawful.

Id.

2003). In June 2004, the Supreme Court reversed the Second Circuit on

a jurisdictional ground, ruling that Padilla’s habeas petition should have

been filed in South Carolina, where he was detained, rather than New

York, where he had been seized. See Rumsfeld v. Padilla, 542 U.S. 426,

451 (2004).

Padilla then filed his habeas petition in South Carolina. There, the U.S.

District Court for the District of South Carolina granted the petition, ruling

that Padilla’s detention violated the Constitution and laws of the United

States and that he therefore had to be either criminally charged or released.

See Padilla v. Hanft, 389 F. Supp. 2d 678, 692 (D.S.C. 2005). The Fourth

Circuit reversed, holding that the government could detain citizens without

charge, even if seized within the United States, if they have carried arms

against the U.S. in a foreign combat zone, as Padilla allegedly did. See

Padilla v. Hanft, 423 F.3d 386, 389-92 (4th Cir. 2005). After Padilla peti-

tioned for certiorari, and shortly before the government’s response was

due, the government transferred him to civilian custody and initiated crim-

inal proceedings against him in the United States District Court for the

Southern District of Florida, arguably mooting the petition. See Padilla v.

Hanft, 432 F.3d 582, 584, 587 (4th Cir. 2005) (order) (denying govern-

ment’s request for transfer); Hanft v. Padilla, 546 U.S. 1084, 1084-85

(2006) (granting the request). The Supreme Court thereafter denied certio-

rari, without reaching the merits of Padilla’s South Carolina habeas peti-

tion. See Padilla v. Hanft, 547 U.S. 1062 (2006).

PADILLA v. YOO 4521

Second, the court concluded that the manner in which

Padilla was treated while detained as an enemy combatant,

which included the alleged use of coercive interrogation tech-

niques, likewise did not constitute a violation of clearly estab-

lished constitutional law. See id. at 803-04. The court

reasoned that:

At the time of . . . Padilla’s detention by the Depart-

ment of Defense, there were few “bright lines”

establishing controlling law on the rights of enemy

combatants. No court had specifically and defini-

tively addressed the rights of enemy combatants, and

the Department of Justice had officially sanctioned

the use of the techniques in question. While it is true

there was vigorous intra-governmental debate on this

issue during Padilla’s detention, the qualified immu-

nity case law makes clear that government officials

are not charged with predicting the outcome of legal

challenges or to resolve open questions of law.

Id. (citation omitted) (quoting Maciariello v. Sumner, 973

F.2d 295, 298 (4th Cir. 1992)).

Finally, the court concluded that Padilla’s treatment while

detained did not violate clearly established rights under

RFRA. See id. at 804-05. The court pointed out that “[n]o

American court during this period had ever definitively

addressed the potential applicability of the RFRA to persons

who were undergoing interrogation as enemy combatants.” Id.

at 804. The court accordingly held that the defendants were

entitled to qualified immunity on the plaintiffs’ RFRA claim

as well. See id. at 805.

In January 2012, the Fourth Circuit affirmed dismissal of

the South Carolina action. See Lebron v. Rumsfeld, 670 F.3d

540 (4th Cir. 2012). The court affirmed dismissal of the plain-

tiffs’ constitutional claims for lack of a Bivens remedy. As

relevant here, the court also affirmed dismissal of the plain-

4522 PADILLA v. YOO

tiffs’ RFRA claims on the basis of qualified immunity, hold-

ing that RFRA’s application “to the military detention setting”

was not clearly established at the time of the alleged viola-

tions. Id. at 560. The court “emphasized the substantial differ-

ences between individuals in civilian custody and individuals

in military custody.” Id. at 558.

We asked the parties to file supplemental briefs addressing

the Fourth Circuit’s decision and, in particular, whether we

should give preclusive effect to the Fourth Circuit’s decision

under the doctrine of nonmutual defensive collateral estoppel.

The parties disagree about whether collateral estoppel should

apply. In view of our precedent, we choose to treat the Fourth

Circuit’s decision as persuasive precedent rather than afford-

ing it preclusive effect. See Af-Cap, Inc. v. Chevron Overseas

(Congo) Ltd., 475 F.3d 1080, 1086 (9th Cir. 2007). We none-

theless reach the same outcome as the Fourth Circuit,

although based on somewhat different reasoning. Whereas the

Fourth Circuit resolved the plaintiffs’ constitutional claims

under Bivens and relied on qualified immunity to resolve only

the plaintiffs’ RFRA claim, we resolve all claims under quali-

fied immunity.

D.

Yoo timely appealed the district court’s order in this case

denying his motion to dismiss. We have jurisdiction under 28

U.S.C. § 1291, see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945-46

(2009), and we review de novo a district court’s denial of a

motion to dismiss on the basis of qualified immunity, see

Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir. 2010). “We

accept as true all well-pleaded allegations of material fact, and

construe them in the light most favorable to the non-moving

party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998

(9th Cir. 2010). “A complaint may survive a motion to dis-

miss if, taking all well-pleaded factual allegations as true, it

contains ‘enough facts to state a claim to relief that is plausi-

ble on its face.’ ” Coto Settlement v. Eisenberg, 593 F.3d

PADILLA v. YOO 4523

1031, 1034 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at

1949).

II. DISCUSSION

A.

The outcome of this appeal is governed by the Supreme

Court’s decision in Ashcroft v. al-Kidd, 131 S. Ct. 2074

(2011), decided subsequent to the district court’s ruling

against Yoo. In al-Kidd, the plaintiff filed a Bivens action

against then-Attorney General Ashcroft, alleging that Ash-

croft violated al-Kidd’s Fourth Amendment rights by autho-

rizing federal prosecutors to obtain valid material witness

warrants for detention of terrorism suspects whom they would

otherwise lack probable cause to arrest. The complaint alleged

that, “in the aftermath of the September 11th terrorist attacks,

. . . Ashcroft authorized federal prosecutors and law enforce-

ment officials to use the material-witness statute to detain

individuals with suspected ties to terrorist organizations.” Id.

at 2079. It alleged “that federal officials had no intention of

calling most of these individuals as witnesses, and that they

were detained, at Ashcroft’s direction, because federal offi-

cials suspected them of supporting terrorism but lacked suffi-

cient evidence to charge them with a crime.” Id. The

complaint alleged that “this pretextual detention policy led to

the material-witness arrest of [Abdullah] al-Kidd, a native-

born United States citizen,” leading al-Kidd to file a Bivens

action challenging the constitutionality of Ashcroft’s alleged

policy as a violation of the Fourth Amendment’s prohibition

against unreasonable searches and seizures. Id. at 2079-80.

Al-Kidd conceded that individualized suspicion supported

issuance of the material witness arrest warrant, but argued that

the arrest was unconstitutional because of Ashcroft’s alleged

subjective intent to use the material witness statute as a pre-

text to detain terrorism suspects who officials never intended

to have testify. See id. at 2083. Ashcroft moved to dismiss

based on absolute and qualified immunity. See id. at 2079.

4524 PADILLA v. YOO

The district court denied the motion and this court affirmed.

See id. at 2079-80. The Supreme Court reversed.

[1] The Court began by reaffirming the general principle

that “[q]ualified immunity shields federal and state officials

from money damages unless a plaintiff pleads facts showing

(1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of

the challenged conduct.” Id. at 2080 (quoting Harlow v. Fitz-

gerald, 457 U.S. 800, 818 (1982)). Significant here, under the

second prong, 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.’ ” Id. at 2083 (alterations

in original) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). “We do not require a case directly on point, but

existing precedent must have placed the statutory or constitu-

tional question beyond debate.” Id. The Court emphasized

that “[q]ualified immunity gives government officials breath-

ing room to make reasonable but mistaken judgments about

open legal questions,” id. at 2085, and admonished us “not to

define clearly established law at a high level of generality,”

id. at 2084.

Applying these principles, the Court concluded that al-

Kidd’s complaint fell “far short” of alleging a violation of

clearly established law. Id. at 2083. The Court observed that,

“[a]t the time of al-Kidd’s arrest, not a single judicial opinion

had held that pretext could render an objectively reasonable

arrest pursuant to a material-witness warrant unconstitution-

al.” Id. Furthermore, the Court’s decisions as a whole had

emphasized that Fourth Amendment reasonableness is “pre-

dominantly an objective inquiry,” id. at 2080 (quoting City of

Indianapolis v. Edmond, 531 U.S. 32, 47 (2000)) (internal

quotation marks omitted), asking “whether ‘the circum-

stances, viewed objectively, justify [the challenged] action,’ ”

id. (alteration in original) (quoting Scott v. United States, 436

PADILLA v. YOO 4525

U.S. 128, 138 (1978)), “ ‘whatever the subjective intent’

motivating the relevant officials,” id. (quoting Whren v.

United States, 517 U.S. 806, 814 (1996)). Although the Court

had recognized certain “limited exception[s]” to this rule, id.

at 2080 (alteration in original) (quoting United States v.

Knights, 534 U.S. 112, 122 (2001)) (internal quotation marks

omitted), it had “almost uniformly rejected invitations to

probe subjective intent,” id. at 2081. The Court accordingly

held that Ashcroft did not violate clearly established law by

allegedly authorizing federal prosecutors to use material wit-

ness arrest warrants, supported objectively by reasonable sus-

picion, as a pretext for detaining terrorism suspects. See id. at

2085.

Here, the complaint alleged that Yoo, as a Justice Depart-

ment attorney, participated in policy decisions and rendered

legal opinions that ultimately authorized federal officials to

designate Padilla as an enemy combatant, take him into mili-

tary custody, hold him incommunicado without access to the

courts or counsel and subject him to both coercive interroga-

tion techniques and harsh conditions of confinement, in viola-

tion of his constitutional and statutory rights.

[2] Padilla and Lebron acknowledge that at the time Yoo

served as Deputy Assistant Attorney General at OLC, there

did not exist a “single judicial opinion,” id. at 2083, holding

that a United States citizen held in military detention as an

enemy combatant possessed rights against the kind of treat-

ment to which Padilla was subjected. They argue, however,

that it was clearly established that Padilla possessed such

rights because any reasonable official would have understood

during 2001 to 2003 that a citizen detained as an enemy com-

batant had to be afforded at least the constitutional protections

to which convicted prisoners and ordinary criminal suspects

were entitled. That argument is foreclosed by al-Kidd, which

compels us “not to define clearly established law at a high

level of generality.” Id. at 2084.

4526 PADILLA v. YOO

Granted, it may sometimes be permissible to rely on cases

involving one type of detainee to establish clearly established

constitutional rights of another type of detainee. See City of

Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244-46 (1983)

(holding that pretrial detainees possess a constitutional right

against deliberate indifference to their serious medical needs

because the due process rights of a pretrial detainee are “at

least as great as the Eighth Amendment protections available

to a convicted prisoner”); Youngberg v. Romeo, 457 U.S. 307,

315-16, 321-22 (1982) (holding that mentally retarded indi-

viduals who are involuntarily committed to a state institution

have a constitutional right to reasonably safe conditions of

confinement under the due process clause of the Fourteenth

Amendment because “[p]ersons who have been involuntarily

committed are entitled to more considerate treatment and con-

ditions of confinement than criminals whose conditions of

confinement are designed to punish”); Hydrick v. Hunter, 500

F.3d 978, 989 (9th Cir. 2007) (holding that “the rights

afforded prisoners set a floor for those that must be afforded”

sexually violent predators subject to civil detention), vacated

and remanded on other grounds, 129 S. Ct. 2431 (2009); Or.

Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003)

(holding, in light of the Supreme Court’s “observation that the

due process rights of pretrial detainees are ‘at least as great as

the Eighth Amendment protections available to a convicted

prisoner,’ ” that the Eighth Amendment provides “a minimum

standard of care” for determining the rights of pretrial detain-

ees (quoting Revere, 463 U.S. at 244)). In Hydrick, for exam-

ple, we held that court decisions defining the constitutional

rights of prisoners could be relied upon to establish a floor for

the clearly established constitutional rights of persons who are

civilly detained as sexually violent predators, for whom the

law was at that time “still evolving.” 500 F.3d at 989. Central

to our holding, however, was the Supreme Court’s earlier

statement that “civilly detained persons must be afforded

‘more considerate treatment and conditions of confinement

than criminals whose conditions of confinement are designed

to punish.’ ” Id. (quoting Youngberg, 457 U.S. at 322).

PADILLA v. YOO 4527

[3] Here, of course, the Supreme Court had not, at the time

of Yoo’s tenure at OLC, declared that American citizens

detained as enemy combatants had to be treated at least as

well, or afforded at least the same constitutional and statutory

protections, as convicted prisoners. On the contrary, the

Supreme Court had suggested in Ex parte Quirin, 317 U.S. 1

(1942), the most germane precedent in existence at the time

of Yoo’s tenure at OLC, that a citizen detained as an unlawful

combatant could be afforded lesser rights than ordinary pris-

oners or individuals in ordinary criminal proceedings.

In Quirin, the Court unanimously rejected the claim of a

United States citizen who was detained as an unlawful enemy

combatant that he was “entitled to be tried in the civil courts

with the safeguards, including trial by jury, which the Fifth

and Sixth Amendments guarantee to all persons charged in

such courts with criminal offenses.” Id. at 24. The petitioner

in question — Herbert Haupt — was a German agent who

claimed to be an American citizen. See id. at 20-22. He had

entered the United States to commit acts of sabotage in sup-

port of the German war effort. See id. at 21-22. He was cap-

tured on American soil, charged by the Judge Advocate

General’s Department of the Army with violations of the law

of war and the Articles of War and tried by a military com-

mission. See id. at 21-23. He argued in a habeas corpus peti-

tion that he was entitled under Article III and the Fifth and

Sixth Amendments to the Constitution to grand jury present-

ment and trial by jury. See id. at 38. The Court rejected his

claim, reasoning that unlawful belligerents had been subject

to military trial at the time of the Constitution’s adoption and

that neither Article III nor the Bill of Rights had been

intended to alter that practice. See id. at 39-44. That Haupt

was a citizen was immaterial; as an unlawful combatant he

was subject to trial by military tribunal alongside the alien

saboteurs with whom he was tried. See id. at 37-38, 44-45.

Padilla and Lebron alternatively rely on the Supreme

Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004),

4528 PADILLA v. YOO

to establish that Padilla’s treatment violated clearly estab-

lished law. In Hamdi, the Court held that a citizen detained as

an enemy combatant retains a fundamental “right to be free

from involuntary confinement by his own government with-

out due process of law.” Id. at 531 (plurality opinion). The

Court held that “a citizen-detainee seeking to challenge his

classification as an enemy combatant must receive notice of

the factual basis for his classification, and a fair opportunity

to rebut the Government’s factual assertions before a neutral

decisionmaker.” Id. at 533. The Court also held that a citizen-

detainee “unquestionably has the right to access to counsel in

connection” with those proceedings. Id. at 539. Hamdi also

intimated that detention of enemy combatants for an interrog-

ative purpose may be impermissible, noting that the proper

purpose of detaining enemy combatants “is to prevent cap-

tured individuals from returning to the field of battle and tak-

ing up arms once again,” id. at 518 (citing Yasmin Naqvi,

Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross

571, 572 (2002)), and adding that “indefinite detention for the

purpose of interrogation” was not permitted by the act of Con-

gress authorizing the use of military force in Afghanistan, the

Authorization for Use of Military Force, Pub. L. No. 107-40,

115 Stat. 224 (2001), id. at 521; see also id. at 577-78 (Scalia,

J., dissenting) (suggesting that Congress would need to sus-

pend the Writ of Habeas Corpus before the government could

detain a United States citizen on American soil for the pur-

pose of “obtain[ing] intelligence through interrogation”).5

Hamdi also called into question the harsh treatment of enemy

combatant detainees, suggesting that the detention of enemy

combatants should be “devoid of all penal character,” id. at

518 (quoting W. Winthrop, Military Law and Precedents 788

(rev. 2d ed. 1920)) (internal quotation marks omitted), and

5

But see Hamdi, 542 U.S. at 595 (Thomas, J., dissenting) (concluding

that the government has an interest in “detaining an enemy soldier not

only to prevent him from rejoining the ongoing fight” but also “to gather

critical intelligence regarding the intentions and capabilities of our adver-

saries”).

PADILLA v. YOO 4529

that enemy combatants should be “treated humanely” while

they are detained, id. at 519 (quoting In re Territo, 156 F.2d

142, 145 (9th Cir. 1946)) (internal quotation marks omitted).6

When measured against this language in Hamdi, Padilla’s

alleged cruel and degrading treatment appears to have been a

violation of his constitutional rights.

Hamdi, however, was not decided until 2004, so it could

not have placed Yoo on clear notice of Padilla’s constitutional

rights in 2001-03 when Yoo was at the Department of Justice.

Even after Hamdi, moreover, it remains murky whether an

enemy combatant detainee may be subjected to conditions of

confinement and methods of interrogation that would be

unconstitutional if applied in the ordinary prison and criminal

settings. Although Hamdi recognized that citizens detained as

enemy combatants retain constitutional rights to due process,

the Court suggested that those rights may not be coextensive

with those enjoyed by other kinds of detainees. On the con-

trary, the Court held that the rights afforded to an enemy com-

batant detainee “may be tailored” to the circumstances, id. at

533, because “the full protections that accompany challenges

to detentions in other settings may prove unworkable and

inappropriate in the enemy-combatant setting,” id. at 535.7

6

In describing these standards, Hamdi made no express distinction

between “[t]he capture and detention of lawful combatants and the cap-

ture, detention, and trial of unlawful combatants.” Hamdi, 542 U.S. at 518

(emphasis added).

7

This statement in Hamdi referred to detainees’ procedural rights, not

their substantive rights, and we do not read the statement as either suggest-

ing or foreclosing the possibility that citizens detained as enemy comba-

tants have lesser substantive constitutional rights than other types of

detainees. Cf. Vance v. Rumsfeld, 653 F.3d 591, 610-11 (7th Cir. 2011)

(observing that Hamdi addressed a question of procedural due process

rather than substantive due process), reh’g en banc granted and opinion

vacated (Oct. 28, 2011). We do observe, however, that the Supreme Court

has in other contexts suggested the possibility that substantive rights too

may vary according to the circumstances of the detention at issue. See

Youngberg, 457 U.S. at 321-22 (“Persons who have been involuntarily

4530 PADILLA v. YOO

[4] In sum, the plaintiffs did not, through their reliance on

either Hamdi or cases involving ordinary prison and criminal

settings, allege violations of constitutional and statutory rights

that were clearly established in 2001-03. During that relevant

time frame, the constitutional rights of convicted prisoners

and persons subject to ordinary criminal process were, in

many respects, clearly established. But Padilla was not a con-

victed prisoner or criminal defendant; he was a suspected ter-

rorist designated an enemy combatant and confined to

military detention by order of the President. He was detained

as such because, in the opinion of the President — albeit

allegedly informed by his subordinates, including Yoo —

Padilla presented a grave danger to national security and pos-

sessed valuable intelligence information that, if communi-

cated to the United States, could have been helpful to the

United States in staving off further terrorist attacks. We

express no opinion as to whether those allegations were true,

or whether, even if true, they justified the extreme conditions

of confinement to which Padilla says he was subjected. Cf.

Rumsfeld v. Padilla, 542 U.S. 426, 465 (2004) (Stevens, J.,

dissenting) (describing “[i]ncommunicado detention for

months on end” as an “unlawful procedure[ ] to extract infor-

mation”). In light of Padilla’s status as a designated enemy

combatant, however, we cannot agree with the plaintiffs that

he was just another detainee — or that it would necessarily

have been “apparent” to someone in Yoo’s position that

Padilla was entitled to the same constitutional protections as

an ordinary convicted prisoner or accused criminal. Anderson,

483 U.S. at 640. Given the unique circumstances and pur-

poses of Padilla’s detention, and in light of Quirin, an official

could have had some reason to believe that Padilla’s harsh

committed are entitled to more considerate treatment and conditions of

confinement than criminals whose conditions of confinement are designed

to punish.” (emphasis added)). For our purposes it is sufficient to say that

it was not clearly established in 2002 that United States citizens detained

as enemy combatants possessed the same substantive due process rights as

other types of detainees.

PADILLA v. YOO 4531

treatment fell within constitutional bounds.8 Even after

Hamdi, the degree to which citizens detained as enemy com-

batants must be afforded the constitutional protections granted

other detainees remains unsettled, because “the full protec-

tions that accompany challenges to detentions in other settings

may prove unworkable and inappropriate in the enemy-

combatant setting.” Hamdi, 542 U.S. at 535. The same is true

of Padilla’s RFRA claim. As the Fourth Circuit held, the

application of RFRA to enemy combatants in military deten-

tion was not clearly established in 2001-03. See Lebron, 670

F.3d at 556-60.

B.

The absence of a decision defining the constitutional and

statutory rights of citizens detained as enemy combatants need

not be fatal to the plaintiffs’ claims. The Supreme Court has

long held that “officials can still be on notice that their con-

8

Whereas convicted prisoners are detained for purposes of “retribution,

deterrence, incapacitation, and rehabilitation,” Graham v. Florida, 130

S. Ct. 2011, 2028 (2010), the President ordered Padilla detained to “pre-

vent him from aiding al Qaeda in its efforts to attack the United States,”

and as a source of “intelligence about personnel and activities of al

Qaeda[ ] that, if communicated to the U.S., would aid U.S. efforts to pre-

vent attacks by al Qaeda on the United States.” Memorandum from Presi-

dent George W. Bush to the Secretary of Defense (June 9, 2002). In the

absence of clear guidance from the courts, a reasonable official could have

had some reason to believe that these circumstances justified affording an

enemy combatant lesser constitutional and statutory protections than ordi-

nary convicted prisoners. Some courts have been sympathetic to such

rationales. See Padilla v. Hanft, 423 F.3d 386, 395 (4th Cir. 2005) (noting

that military detention might be necessary to serve a governmental interest

in restricting a detainee’s “communication with confederates so as to

ensure that the detainee does not pose a continuing threat to national

security even as he is confined”); Lebron v. Rumsfeld, 764 F. Supp. 2d

787, 805 (D.S.C. 2011) (observing that burdens on a detainee’s religious

observation might have served “the arguably compelling state interest in

obtaining control over a critical subject during his interrogation . . . [or]

the governmental interest in sustained interrogation over multiple hours to

obtain the critical information sought”).

4532 PADILLA v. YOO

duct violates established law even in novel factual circum-

stances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); see also

United States v. Lanier, 520 U.S. 259, 271 (1997) (“There has

never been . . . a section 1983 case accusing welfare officials

of selling foster children into slavery; it does not follow that

if such a case arose, the officials would be immune from dam-

ages [or criminal] liability.” (alteration in original) (quoting

United States v. Lanier, 73 F.3d 1380, 1410 (6th Cir. 1996)

(Daughtrey, J., dissenting)) (internal quotation marks omit-

ted)).

[5] The plaintiffs invoke this principle here. They argue

that, even if there is no specific judicial decision holding 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 com-

batant, torture of a United States citizen is the kind of egre-

gious constitutional violation for which a decision “directly

on point” is not required. Al-Kidd, 131 S. Ct. at 2083.9 We

agree with the plaintiffs that the unconstitutionality of tortur-

ing a United States citizen was “beyond debate” by 2001. Id.10

(Text continued on page 4534)

9

That substantive due process under the Fifth Amendment prohibits the

government from engaging in conduct that “shocks the conscience” has

long been clearly established. See Cnty. of Sacramento v. Lewis, 523 U.S.

833, 846-47 (1998) (collecting cases). What has not been clearly estab-

lished is how that standard applies to citizens detained as enemy comba-

tants.

10

As the State Department reported in February 2000:

6. Torture is prohibited by law throughout the United States.

It is categorically denounced as a matter of policy and as a tool

of state authority. Every act constituting torture under the Con-

vention [against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment] constitutes a criminal offence under

the law of the United States. No official of the Government, fed-

eral, state or local, civilian or military, is authorized to commit

or to instruct anyone else to commit torture. Nor may any official

condone or tolerate torture in any form. No exceptional circum-

stances may be invoked as a justification of torture. United States

PADILLA v. YOO 4533

law contains no provision permitting otherwise prohibited acts of

torture or other cruel, inhuman or degrading treatment or pun-

ishment to be employed on grounds of exigent circumstances (for

example, during a “state of public emergency”) or on orders from

a superior officer or public authority, and the protective mecha-

nisms of an independent judiciary are not subject to suspension.

The United States is committed to the full and effective imple-

mentation of its obligations under the Convention throughout its

territory. . . .

49. Torture has always been proscribed by the Eighth

Amendment to the United States Constitution, which prohibits

“cruel and unusual punishments”. . . . [T]he protections of the

right to life and liberty, personal freedom and physical integrity

found in the Fourth, Fifth and Eighth Amendments to the United

States Constitution provide a nationwide standard of treatment

beneath which no governmental entity may fall. The constitu-

tional nature of this protection means that it applies to the actions

of officials throughout the United States at all levels of govern-

ment; all individuals enjoy protection under the Constitution,

regardless of nationality or citizenship. . .

112. Because the Eighth Amendment by its terms applies to

“punishments”, courts have looked to other constitutional provi-

sions, in particular the Fourth Amendment’s protections against

unreasonable searches and seizures and the due process require-

ments of the Fifth and Fourteenth Amendments, to preclude the

abuse or ill-treatment of individuals in other custodial circum-

stances. These constitutional protections are applicable and

enforced at all levels of government.

Initial Report of the United States of America to the United Nations Com-

mittee Against Torture ¶¶ 6, 49, 112, U.N. Doc. CAT/C/28/Add.5 (Feb.

9, 2000) (emphasis added), available at http://www.state.gov/documents/

organization/100296.pdf (an initial report of the United States’ compliance

with the Convention Against Torture); see also Ali v. Rumsfeld, 649 F.3d

762, 781-82 (D.C. Cir. 2011) (Edwards, J., dissenting in part) (cataloguing

United States prohibitions on torture from the nineteenth century through

the present day); Arar v. Ashcroft, 585 F.3d 559, 598 (2d Cir. 2009) (en

banc) (Sack, J., dissenting) (“Although the ‘shocks the conscience’ test is

undeniably ‘vague,’ ‘[n]o one doubts that under Supreme Court precedent,

interrogation by torture’ meets that test” (alteration in original) (citations

omitted) (quoting Harbury v. Deutch, 233 F.3d 596, 602 (D.C. Cir. 2000),

4534 PADILLA v. YOO

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.

[6] In 2001-03, there was general agreement that torture

meant the intentional infliction of severe pain or suffering,

whether physical or mental.11 The meaning of “severe pain or

rev’d on other grounds sub nom Christopher v. Harbury, 536 U.S. 403

(2002))); cf. Vance, 653 F.3d at 606 (“On what conceivable basis could

a U.S. public official possibly conclude that it was constitutional to torture

U.S. citizens?”), reh’g en banc granted and opinion vacated (Oct. 28,

2011).

11

The Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, which the United States signed in

1988 and ratified in 1990, defines torture as:[A]ny act by which severe

pain or suffering, whether physical or mental, is intentionally inflicted on

a person for such purposes as obtaining from him or a third person infor-

mation or a confession, punishing him for an act he or a third person has

committed or is suspected of having committed, or intimidating or coerc-

ing him or a third person, or for any reason based on discrimination of any

kind, when such pain or suffering is inflicted by or at the instigation of or

with the consent or acquiescence of a public official or other person acting

in an official capacity. It does not include pain or suffering arising only

from, inherent in or incidental to lawful sanctions.

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, art. 1(1), Dec. 10, 1984, S. Treaty Doc. No.

100-20, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (emphasis added). Similarly,

the federal statute criminalizing torture that occurs abroad, 18 U.S.C.

§ 2340A, defines torture as “an act committed by a person acting under the

color of law specifically intended to inflict severe physical or mental pain

or suffering (other than pain or suffering incidental to lawful sanctions)

upon another person within his custody or physical control.” Id. § 2340(1)

(emphasis added). Section 2340 further defines “severe mental pain or suf-

fering” as

the prolonged mental harm caused by or resulting from — (A)

the intentional infliction or threatened infliction of severe physi-

cal pain or suffering; (B) the administration or application, or

threatened administration or application, of mind-altering sub-

stances or other procedures calculated to disrupt profoundly the

PADILLA v. YOO 4535

suffering,” however, was less clear in 2001-03. See, e.g.,

Michael W. Lewis, A Dark Descent into Reality: Making the

Case for an Objective Definition of Torture, 67 Wash. & Lee

L. Rev. 77, 82-83 (2010); Judith Resnik, Detention, the War

on Terror, and the Federal Courts, 110 Colum. L. Rev. 579,

633-34 (2010); Sanford Levinson, In Quest of a “Common

Conscience”: Reflections on the Current Debate About Tor-

ture, 1 J. Nat’l Security L. & Pol’y 231, 231-52 (2005).

In several influential judicial decisions in existence at the

time of Yoo’s tenure at OLC, for example, courts had

declined to define certain severe interrogation techniques as

torture:

Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A)

(1978), is the European Court of Human Rights’ leading deci-

sion on torture. The court considered whether five interroga-

tion techniques used by the United Kingdom to interrogate

suspected members of the Irish Republican Army violated

Article 3 of the European Convention of Human Rights,

which prohibits both torture and “inhuman or degrading treat-

ment or punishment.” The five techniques at issue were wall

standing (i.e., stress positions), hooding, subjection to noise,

sleep deprivation and deprivation of food and drink. See id. at

59.12 Because the case was decided before ratification of the

senses or the personality; (C) the threat of imminent death; or (D)

the threat that another person will imminently be subjected to

death, severe physical pain or suffering, or the administration or

application of mind-altering substances or other procedures cal-

culated to disrupt profoundly the senses or personality.

Id. § 2340(2) (emphasis added). The Torture Victim Protection Act

(TVPA), Pub. L. No. 102-256, § 3(b), 106 Stat. 73 (1991), 28 U.S.C.

§ 1350 note, which provides a civil tort remedy for victims of torture,

employs a similar definition of torture.

12

The court described wall-standing as a “stress position” in which

detainees were forced to stand spread-eagled against a wall with their feet

4536 PADILLA v. YOO

Convention Against Torture, the court turned to a definition

provided by United Nations General Assembly Resolution

3452, which described torture as “an aggravated and deliber-

ate form of cruel, inhuman or degrading treatment or punish-

ment.” The court concluded that “[a]lthough the five

techniques, as applied in combination, undoubtedly amounted

to inhuman and degrading treatment,” in violation of Article

3, “they did not occasion suffering of the particular intensity

and cruelty implied by the word torture as so understood.” Id.

at 80.

In HCJ 5100/94 Public Committee Against Torture in

Israel v. Israel 53(4) PD 817 [1999] (Isr.), reprinted in 38

I.L.M. 1471, the Israeli Supreme Court considered whether

coercive techniques used by Israeli security forces violated

international law. The techniques included hooding, violent

shaking, painful stress positions, exposure to loud music and

sleep deprivation.13 The court concluded that each of these

back away from the wall, causing all of their weight to be borne by the

fingers and toes. Hooding was the practice of keeping detainees’ heads

and faces covered by an opaque hood whenever they were not being inter-

rogated. Subjection to noise involved keeping detainees in a room in

which there was a continuous loud hissing noise. The court described

deprivation of food and drink as keeping the detainees on a “reduced diet”

during their stay at the interrogation centers (which lasted for several days

but seldom exceeded one week).

13

The court defined “shaking,” considered the harshest of the challenged

interrogation techniques, “as the forceful shaking of the suspect’s upper

torso, back and forth, repeatedly, in a manner which causes the neck and

head to dangle and vacillate rapidly.” Id. at 1474. Evidence was submitted

that “the shaking method is likely to cause serious brain damage, harm the

spinal cord, cause the suspect to lose consciousness, vomit and urinate

uncontrollably and suffer serious headaches.” Id. The stress positions

used, including the “Shabach” position and the “Frog Crouch,” were

alleged to cause “serious muscle pain in the arms, the neck and head-

aches.” Id. at 1475. The court also considered allegations of excessively

tight hand or leg cuffs, which allegedly “result[ ] in serious injuries to the

suspect’s hands, arms and feet.” Id. Sleep deprivation was also alleged.

PADILLA v. YOO 4537

techniques was illegal, see id. at 1482-85, although the court

did not address whether they constituted torture rather than

cruel, inhuman and degrading treatment, which was also pro-

hibited by international law.

In Price v. Socialist People’s Libyan Arab Jamahiriya, 294

F.3d 82 (D.C. Cir. 2002), the plaintiffs were two American

citizens imprisoned in Libya, allegedly for political reasons.

They alleged that they endured deplorable conditions while

incarcerated, including urine-soaked mattresses, a cramped

cell with substandard plumbing they were forced to share with

seven other inmates, a lack of medical care and inadequate

food. See id. at 86. They also alleged that they were “kicked,

clubbed and beaten” by prison guards, and “interrogated and

subjected to physical, mental and verbal abuse.” Id. The plain-

tiffs sued Libya under the Foreign Sovereign Immunities Act,

alleging torture. The court held that the plaintiffs had failed

to adequately allege torture because they did not allege suffi-

ciently severe pain or suffering, noting that “[t]he critical

issue is the degree of pain and suffering that the alleged tor-

turer intended to, and actually did, inflict upon the victim. The

more intense, lasting, or heinous the agony, the more likely it

is to be torture.” Id. at 93. Although the plaintiffs alleged that

they suffered “kicking, clubbing, and beatings,” there was “no

way to determine from the present complaint the severity of

plaintiffs’ alleged beatings — including their frequency, dura-

tion, the parts of the body at which they were aimed, and the

weapons used to carry them out.” Id.14

Applicants “complained of being deprived of sleep as a result of being tied

in the ‘Shabach’ position, being subjected to the playing of powerfully

loud music, or intense non-stop interrogations without sufficient rest

breaks. They claim that the purpose of depriving them of sleep is to cause

them to break from exhaustion.” Id. at 1476.

14

The court, however, remanded to allow the plaintiffs to attempt to

amend their complaint in an effort to satisfy the stringent definition of tor-

ture. See Price, 294 F.3d at 94.

4538 PADILLA v. YOO

In other decisions in existence at the time of Yoo’s OLC

tenure, this Circuit found torture, but the treatment at issue

was more severe than that to which Padilla was allegedly sub-

jected:

In Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001), amended

on another ground, 355 F.3d 1140 (9th Cir. 2004), an immi-

gration case, we concluded that the petitioner was entitled to

relief under the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT)

because he had been tortured in Iraq. On one occasion, the

petitioner was detained, interrogated and severely beaten for

one month. See id. at 1145. During his interrogations, he was

blindfolded and his hands were tied behind his back. See id.

On another occasion, he was blindfolded, restrained, beaten

and burned with cigarettes over an 8- to 10-day period. See id.

Noting that these actions “were specifically intended by offi-

cials to inflict severe physical pain” on the petitioner, we held,

under CAT, that he suffered torture. Id. at 1147-48.

In Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996),

an Alien Tort Statute case, we held that two plaintiffs, Sison

and Piopongco, were tortured in the Philippines during the

regime of Ferdinand Marcos. See id. at 795. Sison had been

interrogated by members of the military, who blindfolded and

severely beat him while he was handcuffed and fettered;

threatened him with electric shock and death; denied him

sleep; and imprisoned him for seven months in a suffocatingly

hot and unlit cell, measuring 2.5 meters square, during which

time he was shackled to his cot, his handcuffs often so tight

that the slightest movement made them cut into his flesh. See

id. at 790-91. During this period, Sison felt “extreme” and

“almost undescribable” pain. Id. at 791. After his seven

months shackled to his cot, Sison spent more than eight years

in detention, approximately five of them in solitary confine-

ment and the rest in near-solitary confinement. See id. In one

round of interrogation, lasting six hours, Sison’s limbs were

shackled to a cot, a towel was placed over his nose and mouth

PADILLA v. YOO 4539

and his interrogators then poured water down his nostrils so

that he felt as though he were drowning. See id. at 790. The

other plaintiff — Piopongco — was arrested, held incommu-

nicado, interrogated, subjected to mock executions and threat-

ened with death. See id. at 791.

Here, Padilla alleged that he was subjected to prolonged

isolation; deprivation of light; exposure to prolonged periods

of light and darkness, including being “periodically subjected

to absolute light or darkness for periods in excess of twenty-

four hours”; extreme variations in temperature; sleep adjust-

ment; threats of severe physical abuse; death threats; adminis-

tration of psychotropic drugs; shackling and manacling for

hours at a time; use of “stress” positions; noxious fumes that

caused pain to eyes and nose; loud noises; withholding of any

mattress, pillow, sheet or blanket; forced grooming; suspen-

sions of showers; removal of religious items; constant surveil-

lance; incommunicado detention, including denial of all

contact with family and legal counsel for a 21-month period;

interference with religious observance; and denial of medical

care for “serious and potentially life-threatening ailments,

including chest pain and difficulty breathing, as well as for

treatment of the chronic, extreme pain caused by being forced

to endure stress positions.” Compl. ¶¶ 55-56, 64, 69-71. The

complaint also alleged, albeit in conclusory fashion, that

Padilla “suffered and continues to suffer severe mental and

physical harm as a result of the forty-four months of unlawful

military detention and interrogation.” Compl. ¶¶ 6, 76. It also

alleged that Padilla suffered “severe physical pain” and “pro-

found disruption of his senses and personality.” Compl. ¶¶ 45,

75.

[7] We assume without deciding that Padilla’s alleged

treatment rose to the level of torture.15 That it was torture was

(Text continued on page 4541)

15

Recent decisions may offer support for this assumption. In Ali v.

Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011), four Afghan and five Iraqi citi-

zens captured and held in Afghanistan and Iraq by the U.S. military sued

4540 PADILLA v. YOO

former Secretary of Defense Rumsfeld and three high-ranking Army offi-

cers, alleging the plaintiffs were tortured in violation of the Due Process

Clause of the Fifth Amendment. See id. at 764-66. They alleged they were

beaten, stripped naked, hooded, exposed to dangerously high tempera-

tures, subjected to prolonged sleep deprivation, deprived of adequate food

and water, subjected to mock executions and death threats, subjected to

sensory deprivation, placed in restraints and stress positions, sexually

assaulted and denied necessary medical care. See id. at 765-66. The major-

ity did not address whether the plaintiffs’ allegations rose to the level of

torture. In a dissenting opinion, however, Judge Edwards, though observ-

ing that “[t]he definition of torture is a matter of some controversy,”

assumed without deciding “that the offenses articulated in the [plaintiffs’]

complaint constituted torture” — in part because the government did not

dispute the plaintiffs’ assertion in its brief. Id. at 785 (Edwards, J., dissent-

ing in part).

In Vance v. Rumsfeld, which the Seventh Circuit has vacated and agreed

to rehear en banc, the plaintiffs were two United States citizens who

alleged they were detained for weeks and illegally tortured by U.S. mili-

tary personnel in Iraq in 2006. See 653 F.3d at 594. They alleged that the

lights were kept on at all times in their cells; their cells were kept intolera-

bly cold; guards would wake them if they were ever caught sleeping;

heavy metal and country music was pumped into their cells at loud vol-

umes; they were often deprived of food and water; they were repeatedly

deprived of necessary medical care; they experienced “hooding”; they

were “walled,” i.e., slammed into walls while being led blindfolded with

towels placed over their heads to interrogation sessions; they were threat-

ened with excessive force and indefinite detention; their contact with their

families was limited; one of the plaintiff’s requests for clergy visits were

denied; and they were forbidden to correspond with a lawyer or a court.

See id. at 595-97. The three-judge panel held that any reasonable official

in 2006 would have understood this treatment to amount to torture. See id.

at 610. The government effectively conceded that the allegations

amounted to torture. See id. at 607.

In a less comparable case, Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009)

(en banc), a dual citizen of Syria and Canada challenged his extraordinary

rendition to Syria. The plaintiff alleged violations of his substantive due

process rights under the Fifth Amendment, in part based on his alleged

detention and torture in Syria. The majority rejected the plaintiff’s claim

under Bivens, and thus did not decide whether the plaintiff’s treatment in

Syria amounted to torture or otherwise violated substantive due process.

PADILLA v. YOO 4541

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 deci-

sions discussed above, we cannot say that any reasonable offi-

cial 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.

C.

[8] For these reasons, we hold that Yoo is entitled to quali-

fied immunity on the plaintiffs’ claims.16 Because we reverse

The dissent, however, deemed the plaintiff’s treatment to be torture. The

dissent described the most serious allegations as follows:

During his first twelve days in Syrian detention, Arar was interro-

gated for eighteen hours per day and was physically and psycho-

logically tortured. He was beaten on his palms, hips, and lower

back with a two-inch-thick electric cable. His captors also used

their fists to beat him on his stomach, his face, and the back of

his neck. He was subjected to excruciating pain and pleaded with

his captors to stop, but they would not. He was placed in a room

where he could hear the screams of other detainees being tortured

and was told that he, too, would be placed in a spine-breaking

“chair,” hung upside down in a “tire” for beatings, and subjected

to electric shocks. To lessen his exposure to the torture, Arar

falsely confessed, among other things, to having trained with ter-

rorists in Afghanistan, even though he had never been to Afghan-

istan and had never been involved in terrorist activity.

Id. at 587 (Sack, J., dissenting).

16

We have discretion to decide which of the two prongs of qualified

immunity analysis to address first. See al-Kidd, 131 S. Ct. at 2080 (citing

Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Here, we consider only

the second prong.

4542 PADILLA v. YOO

on that basis, we do not address Yoo’s alternative arguments

that the complaint does not adequately allege his personal

responsibility for Padilla’s treatment and that a Bivens remedy

is unavailable.

Our conclusion that Yoo is entitled to qualified immunity

does not address the propriety of Yoo’s performance of his

duties at OLC otherwise. As amici point out, the complaint

alleges that Yoo “intentionally violated professional standards

reflected in OLC practice and willfully disregarded the obliga-

tions attendant on his office.” Brief of Bruce Fein, Roberts B.

Owen and Michael P. Scharf as Amici Curiae in Support of

Plaintiffs-Appellees and Affirmance 2. Amici argue that

“[s]uch conduct, if proven, would strike at the very heart of

OLC’s mission and seriously compromise the ability of the

executive to make informed, even lawful, decisions.” Id. at 2-

3. These allegations have been the subject of an internal

Department of Justice investigation of Yoo’s compliance with

professional standards and are not at issue here.17

III. CONCLUSION

Yoo is entitled to qualified immunity. The order of the dis-

trict court denying Yoo’s motion to dismiss is therefore

reversed in pertinent part.

REVERSED.

17

The Department of Justice investigation produced two reports. See

Dep’t of Justice, Office of Prof’l Responsibility, Report of Investigation

into the Office of Legal Counsel’s Memoranda Concerning Issues

Relating to the Central Intelligence Agency’s Use of “Enhanced Interroga-

tion Techniques” on Suspected Terrorists 260 (July 29, 2009) (concluding

that Yoo committed “intentional professional misconduct”), available at

http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf;

David Margolis, Memorandum of Decision Regarding the Objections to

the Findings of Professional Misconduct in the Office of Professional

Responsibility’s Report 67, 68 (Jan. 5, 2010) (concluding that Yoo “exer-

cised poor judgment” but did not “knowingly provide inaccurate legal

advice”), available at http://judiciary.house.gov/hearings/pdf/

DAGMargolisMemo100105.pdf.