'Torture memos' author can't be sued for harsh interrogations, court rules

Three mental-health experts who examined Padilla have said his mental condition exceeded that standard. His detention and interrogation left him with severe mental disabilities, they say, from which he may never recover.

In addition to Judge Fisher, the Ninth Circuit panel included N. Randy Smith and Rebecca Pallmeyer, a federal judge in the Northern District of Illinois.

The judges said that while the constitutional rights of convicted prisoners and persons subject to the criminal justice system were well established, “it was not beyond debate at that time that Padilla … was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal.”

The court said that someone designated as an enemy combatant by the president – regardless of whether he is a US citizen or not – is not automatically entitled to full constitutional protections.

“Padilla was not a convicted prisoner or criminal defendant; he was a suspected terrorist designated an enemy combatant and confined to military detention by order of the president,” the court said. “He was detained as such because, in the opinion of the president … Padilla presented a grave danger to national security and possessed valuable intelligence information.”

“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,” Fisher wrote. “In light of Padilla’s status as a designated enemy combatant, however, we cannot agree with the plaintiffs that he was just another detainee” entitled to full constitutional protection.

“Given the unique circumstances and purposes of Padilla’s detention [and in light of a World War II legal precedent], an official could have had some reason to believe that Padilla’s harsh treatment fell within constitutional bounds,” the appeals court said.

The court said government officials must be given ample “breathing room to make reasonable but mistaken judgments about open legal questions.”

Citing that principle, the court concluded that Yoo may not be sued – even by US citizens arrested on US soil who were subjected to controversial interrogation tactics after being removed from the criminal justice system to facilitate their open-ended coercive interrogation. 

Padilla was released from the brig and transferred to Miami to face charges that he participated in a conspiracy to provide material support to Al Qaeda. He and two co-defendants were convicted in 2007. Padilla is serving a 17-year prison term.

His criminal case is being appealed to the US Supreme Court. He also has a pending appeal at the high court concerning a civil lawsuit filed against Defense Department officials allegedly responsible for his treatment in the brig.

“The Ninth Circuit’s decision confirms that this litigation has been baseless from the outset,” Yoo told the Associated Press. “For several years, Padilla and his attorneys have been harassing the government officials he believes to have been responsible for his detention and ultimately [his] conviction as a terrorist. He has now lost before two separate courts of appeals, and will need to find a new hobby for his remaining time in prison,” Yoo said.

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