Why Padilla Should Bother You ...

[struggle4progress]

By Steve Vladeck
Wednesday, May 2, 2012 at 7:44 PM

... 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 ...

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

http://www.lawfareblog.com/2012/05/why-padilla-should-bother-you-if-not-yoo/

[grasswire]

1. sickening

K&R

[cliffordu]

2. I figure Yoo should enjoy a taste of what Padilla had for dinner

and then write his next fucking brief about whatever he wants.

Fuck Yoo. He needs to be kicked in the junk every day for about a week.

[Festivito]

3. They think they're just smart enough, but their mothers are embarrassed. /nt