US 9th Circuit Dismisses Action Against Former Justice Dept. Official Based on Participation in Anti-Terror Policy Formulation.

Yesterday, a panel of the U.S. 9th Circuit Court of Appeals held that former US Deputy Assistant Attorney General John Yoo was entitled to immunity against claims relating to his participation in the development of U.S. policy in the “war on terrorism.” Padilla v. Yoo, No. 09-16478 (9th Cir. May 2, 2012).

Plaintiff José Padilla, a U.S. citizen who was detained as an enemy combatant, alleged that “he was held incommunicado in military detention, subjected to coercive interrogation techniques and detained under harsh conditions of confinement, all in violation of his constitutional and statutory rights.” Padilla alleged that Yoo was one of several U.S. government officials who abused their high positions to cause his allegedly unlawful military detention and interrogation.

The court determined that Yoo had qualified immunity because the law as it existed at the time of Yoo’s actions did not clearly establish that detainees such as Padilla were entitled to the same constitutional protections as ordinary civilian prisoners. The court did not agree with Padilla “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. According to the court, “An official could have had some reason to believe that Padilla’s harsh treatment fell within constitutional bounds.”

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