Absolute Immunity for Crimes Against Humanity

By Dana Grimes, Esq.

President Obama’s successful campaign for the Presidency was based in part on his denunciation of the Bush administration’s policy of invoking the law of war to avoid affording basic due process rights to enemy combatants, while ignoring the limits that the law of war imposes on the detention, treatment and trial of prisoners.

Now some critics question whether President Obama’s support for due process and the rule of law is wavering. On December 3, 2009 Eric Holder’s Department of Justice ("DOJ") filed an amicus brief in support of absolute immunity for John Yoo in the Ninth Circuit case of Padilla v. Yoo. John Yoo, a former DOJ attorney during the Bush administration, authored a number of the infamous "torture memos," which provided legal arguments to support the Bush administration’s position that the Geneva Conventions did not apply to detainees from the war in Afghanistan. Yoo’s torture memos also included arguments to prevent U.S. officials from being charged with war crimes for the way detainees were held and interrogated.

U.S. citizen Jose Padilla alleges he was unlawfully detained and tortured for two years as a direct result of the reasoning and conclusions permitting such conduct in the John Yoo torture memos. After being designated an "enemy combatant" in May 2002, Padilla was confined in a South Carolina brig, where his lawyers were not allowed to meet or even communicate with him. In November 2005, his enemy combatant status was, without explanation, dropped. (New charges, unrelated to the original ones, were filed against him and he was convicted in Florida.)

Padilla’s complaint alleges that after he was designated an enemy combatant, he was subjected to 21 months of solitary confinement, sensory deprivation, the administration of psycho-tropic drugs against his will, deprivation of medical care for serious ailments, shackling and manacling for hours, stress positions, the introduction of noxious fumes into his cell, loud noises and sleep deprivation, and other forms of torture that caused post-traumatic stress disorder as well as other neuropsychiatric effects of prolonged isolation. The suit further alleges that Padilla was tortured because John Yoo personally authorized it, knowing that it could not happen without his creating a pseudo-legal rationale for it. The suit seeks nominal damages of $1 along with a declaration that Padilla’s detention and torture were illegal.

In his order substantially denying Yoo’s motion to dismiss the complaint on the basis of immunity, Judge White invokes the Federalist Papers, specifically quoting from Alexander Hamilton’s comments in 1898 as follows: "[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free." The Federalist No. 8, at 44 (Alexander Hamilton), E.H. Scott ed., 1898.

Judge White finds, "Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct…. Here, Padilla alleges that in Yoo’s highly-influential position, he participated directly in developing policy on the war on terror. The complaint specifies that in Yoo’s role as an advisor in the President’s War Council, he drafted legal opinions which lay out the legal groundwork for assessing the designation of individual enemy combatants and legitimized the unconstitutional treatment of those individuals once detained…"

In his order denying the motion to dismiss Padilla’s cause of action, Judge White cites a variety of formerly "classified" documents, including a 2003 memorandum stating Yoo "had received assurances from the Criminal Division of the Justice Department that prosecutions would not be brought against interrogators, reinforcing the point that even federal officials who committed war crimes or torture under federal criminal statutes would escape responsibility for their crimes." (Court Exhibit E, March 13, 2003 Memorandum from Yoo to Haynes: Military Interrogation of Alien Unlawful Combatants Held Outside the United States.)

Judge White described "the irony of [Yoo’s] position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla’s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power."

It is widely accepted that DOJ lawyers and employees have immunity for official acts. The legal issue presented in Padilla v. Yoo is whether that absolute immunity applies when a government official engages in conduct that violates the rights of a U.S. citizen in a way that is criminal or shocks the conscience. It was the position of the Bush administration (and is now apparently that of the Obama administration as well) that DOJ lawyers are immune from civil claims alleging torture, kidnaping, renditions to torture and warrantless surveillance.

The questions raised by the Padilla v. Yoo case relate to the balance between the requirements of waging war while simultaneously defending the very freedoms that war seeks to protect. Last June, Federal District Court Judge Jeffrey S. White (a 2002 Bush appointee) substantially denied Yoo’s motion to dismiss the civil complaint. As Justice White indicated in his order substantially denying Yoo’s motion to dismiss, "This lawsuit poses the question addressed by our founding fathers about how to strike the proper balance of fighting a war against terror, at home and abroad, and fighting a war using tactics of terror."

The United States Supreme Court recently discussed this delicate balancing act in 2004 as follows:

Hamdi v. Ashcroft (2004) 542 U.S. 507, 532.

Urging the Ninth Circuit to reverse this common-sense, democratic ruling, the Obama administration brief argues, "There can be little question that the claims here directly implicate war powers of the President, with respect to the military’s detention and treatment of those determined to be enemies during an armed conflict, that have never been the subject of money-damages actions in our nation’s long history." The brief also argues, "If enforced, [Padilla’s claims] would create a large shadow over sensitive matters of military discretion." (Recall that Padilla’s suit seeks nominal damages of $1 along with a declaration that his detention and torture were illegal.)

The Eric Holder DOJ takes the position that there are only three ways in which a DOJ attorney, as opposed a normal human, can be held accountable for causing damage to others: internal reviews by the DOJ, disciplinary action by the attorney’s bar association and criminal prosecution. Critics contend the DOJ is not exactly an independent and impartial reviewer of its own conduct, and state bar associations as a matter of practice do not take up cases involving justice department employees. (Moreover, some would also say disbarring a lawyer found responsible for torturing is not adequate relief to the tortured victim.) Additionally, the DOJ is not responding to criminal inquiries from Spain and elsewhere and it seems unlikely that a domestic law enforcement agency is going to prosecute DOJ attorneys who are, after all, members of a fellow domestic law enforcement agency.

Obama administration lawyers have made similar arguments in the past, supporting the dismissal of suits brought by CIA "extraordinary rendition" survivors and government eavesdropping victims. The arguments center on the proposition that the court has no power to review executive decisions – an argument eerily reminiscent of that made by President Obama’s predecessor (for instance, when Bush administration folks like Alberto Gonzales and John Ashcroft were defending enhanced interrogation techniques and the incarceration of enemy combatants without the most basic of due process rights).

An internal review by the DOJ’s Office of Professional Responsibility was released on February 19, 2010, and concluded that Yoo and another Bush administration lawyer, Jay S. Bybee (who also authored torture memos) did not commit professional misconduct when they issued legal memos authorizing harsh interrogation tactics on terrorism suspects, although the memos did demonstrate "poor judgment." Bybee is now a judge on the U.S. 9^th Circuit Court of Appeals in San Francisco and Yoo teaches law at UC Berkeley.

How the courts define their own role in counter-terrorism policy in Padilla v. Yoo will be a significant moment in both American jurisprudence. The Supreme Court has held that a "state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens." Hamdi v. Ashcroft, supra, 542 U.S. 507, 532 at 535. Although courts should defer to the legislative and executive branches of government with respect to the "core strategic matters of war making ... [w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." Id. at 535, 537.

Holder and Obama reject the idea that those in high positions who authorized torture and wrote the legal framework for it can be tried civilly. Now the Ninth Circuit will weigh in on what kind of immunity, if any, applies to Yoo. The larger question, though, is whether executive power will be effectively checked by our judicial system, thereby reaffirming the United States’ commitment to fighting terrorism consistent with American values, not only in times of peace, but also times of war.  It can not be predicted how the immunity issue addressed in Padilla v Yoo will be resolved by the Supreme Court, if it reaches that court.  However, in the context of the rights of detainees, the Supreme Court consistently ruled against attempts by the Bush-Cheney administration in its efforts to eliminate rights such as the right to counsel and to habeus corpus (see for example Hamdan v Rumsfeld (2006) 548 US 557

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