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Immunity, Not Impunity—A Commentary by Peter H. Schuck

The following commentary ran in the November 2009 issue of American Lawyer.

Immunity, Not Impunity
By Peter H. Schuck

The tortuous path of the “torture memos” is a long and winding road that shows no signs of reaching its destination. These legal analyses, initially requested by the Central Intelligence Agency, were prepared in 2002 as the Bush administration developed detention and interrogation policies regarding suspected Taliban and Al Qaeda terrorists captured abroad or in the United States. The memos, prepared by lawyers in the U.S. Department of Justice’s Office of Legal Counsel (OLC), concluded that prolonged detention, isolation, and a wide range of harsh interrogation techniques (including waterboarding, most notoriously) that the CIA wanted to use on a small number of “enemy combatants” were legally permissible. The memos were also forwarded to the attorney general and White House staff, who along with the CIA relied on them in framing their policies.

The principal drafter of the early memos was John Yoo. A former Senate staffer, U.S. Supreme Court clerk, prolific scholar on issues of separation of powers, international law, and the law of war and national security, and professor at Boalt Hall School of Law at the University of California, Berkeley, Yoo is a leading exponent of broad presidential powers in wartime, subject to limited or no judicial review. (Disclosure: Yoo was my student at Yale Law School in the early 1990s.) The memos were coauthored with Jay Bybee, his boss and the head of the OLC at the time, and now a federal appeals court judge. The memos aroused enormous controversy from the moment the first one became public in June 2004; the harsh criticism continues unabated to this day from many quarters. Some attack the memos’ legal analysis; others denounce the Bush administration’s policy decisions to engage in the authorized practices; still others, the bureaucratic politics and secrecy surrounding them.

A federal trial court has now entered the fray. On June 12, 2009, Judge Jeffrey White of the federal district court in San Francisco issued an opinion refusing to dismiss a lawsuit against Yoo brought by Jose Padilla, a U.S. citizen who was convicted in 2007 of aiding terrorists and sentenced to more than 17 years. Padilla (and his mother, who also sued) seek nominal damages and a declaration that Yoo violated Padilla’s constitutional rights by rendering opinions and formulating policies that set in motion Padilla’s illegal interrogation and detention. Yoo has appealed Judge White’s decision to the U.S. Court of Appeals for the Ninth Circuit, which I believe should and will reverse it.

This lawsuit, and Judge White’s decision upholding it, are ill conceived for at least three distinct reasons: legal principles, sound public policy, and professional ethics. I take this view even though I am willing to concede the main criticisms leveled at Yoo’s memos: that they got the law wrong at key points, were sometimes sloppily and superficially reasoned, and were intended to justify a predetermined outcome. (If I am right, it means that Yoo should not be prosecuted criminally, where the standard of proof and the necessity of showing an intent to harm would be much higher, and the sanctions more severe.)

Legal Principles. Even if these criticisms of the memos are correct, the long-standing law of official immunity requires that Yoo be protected from civil liability—except in the exceedingly unlikely event that he knew that his legal advice was wrong. For Padilla to overcome this immunity, he must do much more than demonstrate that Yoo’s legal advice was wrong and violated his legal rights, although even this will be difficult to do. He must also show that Yoo could not reasonably have believed that his legal advice was correct and did not violate Padilla’s rights.

Padilla cannot meet this standard. His legal obstacles begin with the insufficiency of his complaint. In considering Yoo’s motion to dismiss, of course, Judge White had to assume the truth of Padilla’s factual allegations. But the Supreme Court held two years ago in Bell Atlantic v. Twombly that assumed facts do not suffice, without more, to advance a plaintiff’s claims to trial. To avoid dismissal, a plaintiff must show that the link between his alleged facts and his legal theory is more than conceivable; it must be “plausible on its face.” Then, this May, only three weeks before Judge White’s decision in Padilla v. Yoo, the Court reaffirmed Twombly in Ashcroft v. Iqbal, which dismissed a complaint alleging, as Padilla does against Yoo, unconstitutional detention and interrogation after 9/11. (Sou¬ter and three other justices dissented.) As in its other official immunity decisions, the Court reiterated the need to head off burdensome discovery and trial unless plaintiff can make a plausible threshold showing of liability. Judge White, however, did not even bother to distinguish Iqbal.

Even with the benefit of discovery, Padilla would be unable to do so. Consider the evidentiary obstacles he would face—quite apart from having to overcome Yoo’s strong immunity defense (discussed below). He would have to prove that Yoo, rather than Bybee (not a defendant), was responsible for the bad advice in the memos; that he did not reasonably rely on information provided to him by the CIA about the techniques; that the layers of Yoo’s superiors (all fine lawyers) who reviewed and transmitted the advice onward did not endorse it and take the responsibility on themselves (i.e., became a “supervening cause,” in tort doctrine, of what ensued); and that Yoo’s advice was the actual and proximate cause of the policy decisions that Padilla challenges rather than the many other factors that must have influenced President George W. Bush and his advisers.

In order to establish these things, moreover, Padilla would presumably have to take depositions of the president and his staff and subpoena their internal deliberative documents, which would surely be privileged. Judge White brushed aside these and other legal obstacles, reasoning that all of them were matters to be developed through discovery, even though the Court in Twombly and Iqbal had rejected precisely this reasoning: “It is no answer to say that a claim just shy of plausible entitlement can be weeded out early in the discovery process, given the common lament that the success of judicial supervision in checking discovery abuse has been modest.” And discovery in Yoo, of course, would involve highly sensitive national security materials used by elected officials at the highest levels.

Assuming that Padilla could somehow hurdle these threshold legal obstacles, he would face three other formidable ones. First, he must show that the tight restrictions that the Court has long imposed on the right to bring Bivens actions—damage actions against individual federal officials for constitutional violations—should be relaxed in this case. But in the more than 35 years of Bivens actions, the Court has allowed such claims to proceed in only a few situations, none of which is remotely like the claims in Yoo. Moreover, the standard a Bivens plaintiff must satisfy—that there are no “special factors counseling hesitation” in allowing a damage remedy against an individual official rather than suing under the Federal Tort Claims Act—cannot be met in a case like Yoo, in which serious legal and factual difficulties abound. Once again, Judge White waved this case law aside, dismissing in one sentence the closest precedent—a recent D.C. Circuit decision denying a Bivens remedy to plaintiffs with claims similar to Padilla’s—simply because those plaintiffs were detained abroad while Padilla was detained here, a trivial distinction.

Second, Padilla must show that Yoo’s memos were wrong as a matter of law. Given the ambiguity of international instruments, domestic statutes, and judicial precedents on this point at that time (and even now), this will be a challenging, though not impossible, task. Although many liberal legal scholars disparage Yoo’s analysis, other more conservative ones praise it.

The third and most important obstacle is official immunity. The Court has insisted both on protecting officials’ good faith decisions even when erroneous, and on ensuring in immunity-worthy cases that this shield operates at the threshold before the official is subjected to the burdens of discovery and the anxieties of potential liability. Its reason is certainly not any judicial solicitude for the official. Rather, the Court’s concern is for the public’s interest in fearless, vigorous decision making, especially by officials who must exercise delicate judgment. Thus, to overcome the immunity claim, Padilla must prove not just that Yoo violated his legal rights but that the violated right was “clearly established” as a matter of law, implying either that Yoo wrote his memos in bad faith or that he was so incompetent that he failed to reach a legal conclusion that was obvious to all.

Even if some of Yoo’s legal analysis turns out to be wrong, how can Padilla possibly show that Yoo did not believe in the truth of his own analysis and thought that it was plainly wrong? Critics say many nasty things about Yoo and his views, but few assert that he did not believe in the principles he avowed or that he eschewed the rule of law. He simply interpreted the law differently, and in their view wrongly. Consider also the findings of an analysis by New York Times reporters Scott Shane and David Johnston, published in June 2009. They wrote that many Justice Department lawyers reviewing the legal arguments for the harsh interrogation techniques in 2005, including Deputy Attorney General James Comey, who strongly opposed using them as a matter of policy, concluded that the techniques were lawful. (Comey, of course, is widely praised for his integrity and professionalism—for example in the infamous unseemly effort by White House officials to pressure the then hospitalized attorney general, John Ashcroft, to reauthorize George W. Bush’s domestic surveillance program.) The Times article also detailed how later OLC directors Jack Goldsmith and Daniel Levin accepted the legality of those techniques (including, in Levin’s case, waterboarding), even as they opposed their use on policy grounds and found some of Yoo’s earlier analysis sloppy.

Public Policy. There is a good reason why the Court insists on broad immunity for all but clearly established and knowing violations of law. Society depends on midlevel officials like Yoo to give their superiors (and us) their best judgment on difficult issues without having to worry about being dragged into court if they turn out to be wrong or (in the case of criminal prosecution) when a new administration arrives. We do not want them to pull their analytical punches in anticipation of having to defend possible Bivens actions. Immunity in these circumstances benefits us; if it also benefits Yoo, that is incidental.

Yoo, by the way, is hardly unscathed: The Justice Department, having perceived a potential conflict of interest in representing him, has ceased doing so and has agreed instead to pay a private lawyer, Miguel Estrada, an hourly rate far below his usual fee, forcing Estrada to subsidize the defense on a charitable basis. Were Estrada not willing to do so, Yoo’s defense costs could be financially ruinous—even if, as I predict, Yoo wins his case. Yoo is lucky to have Estrada in his corner, but how many officials can count on pro bono representation by a top lawyer? Putting officials at risk of personal ruin whether or not they later prevail in court is not only manifestly unfair to them; more important, it is a terrible way to run a government. Just ask lawyers in any banana republic.

Professional Ethics. There is much talk among Yoo’s critics of disbarring him and other officials who gave legal advice that other lawyers and lay people find abhorrent. In reality, this is an effort to find scapegoats for Bush administration policies that many Americans fervently opposed—and that contributed to his party being driven from office. Lawyers should not be punished for writing arguably sloppy or faulty memos, much less for being on the wrong side of history. It is one thing to disagree strenuously with a lawyer’s view of the law, quite another to say that he has traduced the rule of law and must be banished from its precincts. A professional ethic worthy of the name knows the difference.

Immunity is not impunity. Protecting officials from being sued personally over good faith legal and policy disagreements does not place them above the law. Rather, it preserves the line between law and politics that is so necessary for the integrity and vitality of each.

Peter H. Schuck is a professor at Yale Law School. His most recent books include Targeting in Social Programs and Meditations of a Militant Moderate.