The board currently consists of 14 judges appointed by the U.S. attorney general without U.S. Senate confirmation that exists within the Executive Office for Immigration Review in the Justice Department. The Aug. 11 decision was issued by a panel of three board members: two appointed by Bush-era attorneys general (one by John Ashcroft and one by Michael Mukasey), and one appointed by Clinton Attorney General Janet Reno. The decision was written by Roger Pauley, the Ashcroft appointee. #

The decision comes at a time when immigrant rights groups have criticized the Obama administration for harsh immigration enforcement efforts, a practice inherited from the previous administration, which escalated deportations over the course of the 2000s. #

The issue at the heart of the board’s decision is timing. Federal immigration officials are constrained by the Fourth Amendment and the Due Process clause of the Fifth Amendment, as well as by the Immigration and Nationality Act and federal regulations. Regulations provide certain protections to immigrants that are not in the Constitution, among which is the requirement that federal officials notify immigrants of their rights to obtain an attorney (not at the government’s expense) and that anything they say will be used against them, before they are placed in formal deportation hearings. #

The time period between when an immigrant is arrested by the authorities without a warrant — for example, during a workplace raid, or while federal officials are entering a house or workplace with a warrant for some reason other than arresting the immigrant — and when they are placed in deportation proceedings has been a gray area as far as the immigrant’s specific rights are concerned. #

Before the Aug. 11 decision, the federal regulation dictating the timing of rights notifications had been interpreted in conflicting ways by different courts. Immigration lawyers argued the notifications should occur before questioning, and two federal appeals courts, the Second and the Eighth, have agreed. In 2009, however, the Ninth Circuit argued that the language of the regulation implies that notifications don’t have to precede questioning. #

The Ninth Circuit has a jurisdiction that covers two of the states with the largest proportions of unauthorized immigrants in America, California and Arizona (according to the Pew Hispanic Center), so its opinion on this matter carried some impact. But with the Justice Department’s own appellate body weighing in on the side of the Ninth Circuit, decreased protections for immigrants arrested without warrants could become a reality throughout the entire nation. #

One important caveat is that current U.S. Attorney General Eric Holder can still vacate the board’s decision, an action that is rare but was recently done in the case of a man who wished to stay in the country with his male partner but whose deportation was upheld by the board under the Defense of Marriage Act. Whether Holder wishes to intervene and override the panel, none of whose members were appointed by Holder, in an effort to preserve legal protections for immigrants, remains to be seen. #

In an interview with the Huffington Post at the Conservative Political Action Conference, the former Bush administration official said that there are “a variety of tools that ought to be available to an administration” in its efforts to curb terrorism and bring terrorists to justice.

Asked specifically about holding civilian trials for terrorists, he said such a venue “has use and utility.”

When asked how to distinguish whether to use a military tribunal system or criminal courts for terrorist suspects, Ashcroft said: “It depends on the circumstances.”

Of course, Ashcroft prevented the Bush White House from circumventing the Justice Department’s certification that blanket surveillance in the name of counterterrorism was illegal, so you know he’s a squish.

In the same case, however, Turkmen v. Ashcroft, the court also sent back the plaintiffs’ claims that they were held in abusive conditions of confinement following the terrorist attacks on Sept. 11, 2001. They’ll have another chance to make those claims, but, significantly, will have to meet the Supreme Court’s new heightened pleading standards set out in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

Maher Arar is a Canadian citizen who was seized in 2002 while changing planes at John F. Kennedy airport in New York and sent to Syria, where he says he was interrogated under torture and kept in a tiny grave-like cell. He was released almost a year later without charge, and with an acknowledgment by the Syrian government that it had no evidence against him.

After conducting its own investigation, the Canadian government confirmed that Arar had done nothing wrong, apologized for its role in providing faulty information to U.S. authorities, and paid Arar about $10 million in compensation for his ordeal. The United States, on the other hand, has never officially acknowledged the error (although former National Security Adviser Condoleezza Rice once conceded in a congressional hearing that the case had been “mishandled”) and still refuses to allow Arar to enter the country.

Represented by the Center for Constitutional Rights, Arar sued former Attorney General John Ashcroft in January 2004, FBI Director Robert Meuller and other U.S. officials for sending him to Syria where they knew he was likely to be tortured. Today, the full Second Circuit Court of Appeals, which heard the case en banc in a dramatic 2-hour oral argument last December, ruled that Arar has no right to compensation from U.S. officials.

Although the opinion is long and complex, the essence of the court’s decision is that the lawsuit cannot be allowed to go forward because it would “have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.” As for his claims under the Torture Victims Protection Act, Arar can’t claim compensation from U.S. authorities since it was the Syrians who tortured him, even if U.S. officials knew that he was likely to be tortured when they sent him to Syria.

The case does not bode well for other victims of the Bush administration’s “extraordinary rendition” and other abusive interrogation policies, since virtually all of those cases could similarly implicate national security concerns. The other major extraordinary rendition case, brought by five British victims of the policy against a Boeing subsidiary that assisted the CIA, is pending before the Ninth Circuit Court of Appeals. The Obama administration recently won a re-hearing in that case, which it seeks to dismiss on the grounds that the litigation itself would reveal “state secrets” and endanger national security.

The Second Circuit judges voted seven to four to dismiss Arar’s case today. In a strongly worded dissent, Judge Guido Calabresi wrote: “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Here is the court’s opinion, filed today:

Abdullah al-Kidd, a Kansan who converted to Islam in college, was arrested in 2003 after he and his wife became targets of an FBI anti-terrorism investigation involving surveillance of Arab and Muslim men. The FBI never found any evidence against al-Kidd, but believed he might have information that would be useful to another prosecution. Although al-Kidd agreed to cooperate, the FBI detained him for the next 16 days in high-security prisons in Virginia, Oklahoma and Idaho. Strip-searched and shackled, he was kept in a cell that was lit 24 hours a day.

Al-Kidd was finally allowed to leave, but only if he promised to live at his in-laws’ home in Nevada, limit his travel to only four states, report regularly to a probation officer and consent to home visits for more than a year. Fifteen months’ later, he and his wife had separated, and al-Kidd was fired from his job after he was denied a security clearance due to his arrest, he claims. He was also denied a chance to study in Saudi Arabia on a scholarship.

Al-Kidd was never charged with any crime or called as a witness in any trial.

In March 2005, Al-Kidd sued Ashcroft for what he claims was an illegal policy of detaining Muslim men suspected of terrorism as material witnesses even though there was no evidence against them, they’d agreed to cooperate with the government and posed no security risk.

Like other former government officials sued in recent years for promulgating unlawful counter-terrorism policies, Ashcroft claimed he was immune from suit as a government official doing his job. But in this case, the court ruled against him. There was no doubt that it was unconstitutional to arrest a person without probable cause that he committed a crime under the pretext that he may be a witness to one, the court ruled.

“All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.”

Writing for the court, Judge Milan Smith continued, suggesting concerns broader than al-Kidd’s case alone:

Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

Al-Kidd still has to prove the facts of his case, but he’s scored a significant legal victory.

“The court made it very clear today that former Attorney General Ashcroft’s use of the federal material witness law circumvented the Constitution,” said American Civil Liberties Union Immigrants’ Rights Project Deputy Director Lee Gelernt, who argued the appeal. “Regardless of your rank or title, you can’t escape liability if you personally created and oversaw a policy that deliberately violates the law.”

That victory may not translate to many of the other cases involving victims of post-9/11 U.S. government detention policies who were not U.S. citizens, however, or who were detained in prisons abroad. Courts have generally ruled that the rights of non-citizens detained in overseas prisons were not sufficiently clear in the initial years after the September 11, 2001 terrorist attacks to warrant denying government officials immunity from lawsuits, even if the detainees were held for years without charge or trial.

Yoo starts things off with his typical flourish of disingenuousness:

Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden’s Afghanistan headquarters. What better way of detecting follow-up attacks? And what president — of either political party — wouldn’t immediately order the NSA to start, so as to find and stop the attackers?

Evidently, none of the inspectors general of the five leading national security agencies would approve.

Those inspectors general, in Yoo’s imagination, aren’t overworked bureaucrats in wrinkle-free shirts, cotton Dockers and overgrown haircuts, buried under endless reams of paper. They’re useful idiots for Osama bin Laden. In truth, the reason why the inspectors general don’t entertain that scenario is because it’s absurd. If the intelligence community knew what the “electronic communications” signatures heading into and out of Osama bin Laden’s Afghanistan headquarters were, they could very easily obtain warrants under the Foreign Intelligence Surveillance Act of 1978, because they’d possess individualized suspicion. This is an unproblematic case, fitting easily under the aegis of the law on Sept. 12, 2001.  It has absolutely nothing to do with what the inspectors general call the “President’s Surveillance Program.” That’s also why the battery of Justice Department leaders like Acting Attorney General Jim Comey, Associate Attorney General Jack Goldsmith, FBI Director Robert Mueller and Associate Deputy Attorney General Patrick Philbin fought to rein in the surveillance activities — because they were overbroad and outside of FISA, which Congress explicitly made the “exclusive means” for conducting legal foreign surveillance. Yoo continues:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States.

Actually, it’s absurd to think that a law like FISA does. Yoo cites the 9/11 Commission, saying it found that “FISA’s wall between domestic law enforcement and foreign intelligence” proved to be such a hindrance, but that’s a misrepresentation. FISA has no such wall. The “wall” was an invention of the Justice Department under Janet Reno to separate foreign-collected surveillance from criminal investigations, nothing even close to “live military operations,” and in practice that bureaucratic restriction went too far and inhibited necessary FBI-CIA collaboration. The Bush administration’s response wasn’t to get Congress to change FISA; it was to entirely circumvent it.

Clearly, the five inspectors general were responding to the media-stoked politics of recrimination, not consulting the long history of American presidents who have lived up to their duty in times of crisis. More than a year before the attack on Pearl Harbor, President Franklin Delano Roosevelt authorized the FBI to intercept any communications, domestic or international, of persons “suspected of subversive activities . . . including suspected spies.”

You know what law, passed in 1978, didn’t exist when FDR was president? Yoo goes even further, and takes selective quotations from Jefferson and Hamilton to suggest that his long-discredited theory that presidents have king-like powers during times of war, and yet he never comes out and says it, because even in The Wall Street Journal people can recognize absurdity.

What’s amazing about Yoo’s caustic attack on the inspectors general report is that the report itself embarrasses Yoo but does little else. There’s no suggestion of prosecution, no recommendation of additional investigation, no harsh language. It says simply that Yoo says what he says in this op-ed and that his superiors at OLC were cut out of that loop. That’s all. Yoo’s not even in danger, if reports about Attorney General Eric Holder’s potential new investigation are to be believed, of moving into the crosshairs of the Justice Department. Today’s attack on the inspectors general is Yoo’s response to having his own words quoted back at him. Which, perhaps, is insult enough. It’s like seeing the next 30 years of your life unfold before your horrified eyes.

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According to notes from Ashcroft’s FBI security detail, at 6:20 p.m. that evening Card called the hospital and spoke with an agent in Ashcroft’s security detail, advising him that President Bush would be calling shortly to speak with Ashcroft. Ashcroft’s wife told the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft’s Chief of Staff David Ayers at DOJ to request that Ayers speak with Card about the President’s intention to call Ashcroft. The agent conveyed to Ayers Mrs. Ashcroft’s desire that no calls be made to Ashcroft for another day or two. However, at 6:45 p.m., Card and the President called the hospital and, according to the agent’s notes, “insisted on speaking [with Attorney General Ashcroft].” According to the agent’s notes, Mrs. Ashcroft took the call from Card and the President and was informed that Gonzales and Card were coming to the hospital to see Ashcroft regarding a matter involving national security.

Jack Goldsmith remembers that after a seriously-ill Ashcroft told Gonzales and Card to follow Comey’s legal advice, Goldsmith seriously thought Ashcroft might actually die right then and there. Ashcroft earns himself a place in the patriot’s pantheon just for that. I truly can’t wait to see how Bush’s presidential library treats this incident.

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So what does today’s Inspectors General report say about Gonzales?

[T]he DOJ [Inspector General] concluded that Gonzales, as a participant in the March 2004 dispute between the White House and DOJ and, more importantly, as the nation’s chief law enforcement officer, had a duty to balance his obligation not to disclose classified information with the need not to be misleading in his testimony about the events that nearly led to resignations of several senior officials at DOJ and the FBI. The DOJ [Inspector General] concluded that Gonzales did not intend to mislead Congress, but it found that his testimony was confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.

Gonzales, by the way, was just hired by Texas Tech’s political science department.

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Let me give it a shot. Yoo was a close ideological and bureaucratic ally of Vice President Dick Cheney, Cheney’s lawyer David Addington and White House Counsel Alberto Gonzales. This passel of surveillance programs was extremely close held, and since it went outside a law that’s supposed to be the “exclusive means” for conducting foreign surveillance, having a reliable ally give a legal blessing to the program was crucial. That importance came in stark relief when non-allies at the Justice Department like Jack Goldsmith, Jim Comey, John Ashcroft and Robert Mueller refused to reauthorize the programs in 2004, resulting in the famous midnight visit to Ashcroft’s hospital bedside.

Of course, I’m just speculating. Yoo wouldn’t talk to the inspectors general.

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Jose Padilla is escorted into a Florida courtroom in 2007 (Photo: Florida Southern District Court)

Since U.S. District Judge Jeffrey White ruled late Friday in San Francisco that former “enemy combatant” Jose Padilla can proceed with his lawsuit against “torture memo” author John Yoo, the decision has been interpreted by many in the media as a broad vindication of detainees’ rights to sue former Bush administration officials.

In fact, the ruling’s implications are narrower than that, and could also be appealed. But, still, the opinion has heartened some civil rights lawyers because it rejects many of the claims made by former Bush officials that they’re not liable for their actions formulating policy in the “war on terror.” That could persuade judges hearing other claims against former officials as well. The ruling also allows the civil case to move forward against John Yoo, and could in the process reveal significant new information not only about Yoo, but about his interaction with the White House, and exactly how he reached the legal conclusions that he did. That information could, in turn, be used against him in future criminal or congressional proceedings.

Illustration by: Matt Mahurin

But Padilla’s situation was highly unusual, which is one reason the decision’s implications are limited. A U.S. citizen arrested in Chicago in 2002, he was declared an enemy combatant by President George W. Bush and held in a U.S. military prison in South Carolina without charge for the next three and a half years. He claims that while there, he was subjected to a range of harsh and arguably illegal interrogation techniques, such as sleep deprivation, exposure to extreme hot and cold temperatures, threats to torture and to kill him, stress positions, and more. (Padilla was eventually transferred to civilian custody and tried in federal court on criminal conspiracy charges and sentenced to 17 years in prison.) Represented by private lawyers working with a Yale Law School clinic, Padilla and his mother are now suing Yoo, among others, for orchestrating the policies that led to his treatment by U.S. officials. (Padilla has a similar case pending in South Carolina against former Attorney General John Ashcroft and former Defense Secretary Donald Rumsfeld.)

Unlike Padilla, most of the hundreds of other detainees deemed “enemy combatants” by the Bush administration were foreign nationals captured abroad and imprisoned at Guantanamo Bay, which at least technically is not U.S. soil. Judge White acknowledges that those detainees will have a harder time suing government officials. In his opinion, he cites the U.S. Circuit Court of Appeals for Washington, D.C.’s ruling in In re Iraq and Afghanistan Detainees Litigation (pdf), where the court held that “foreign citizens detained abroad” could not sue “for deprivation of their constitutional rights.” A judge-created remedy, the court reasoned, “would invite enemies to use our own federal courts to obstruct the Armed Forces’ ability to act decisively and without hesitation in defense of our liberty and national interests” and would risk “aiding our enemies” by giving them a means of learning information about U.S. military affairs.

That’s not relevant to Padilla, who was a Brooklyn-born U.S. citizen detained in South Carolina.

Still, several points Judge White made in the decision do bear on other cases, and although not binding on other courts, could be persuasive. Most importantly, Judge White rejected Yoo’s claim that he is entitled to immunity from lawsuits because the right of an “enemy combatant” not to be tortured and abused by U.S. authorities was not clear at the time. Former Bush administration officials have repeatedly made similar claims in other cases, often with success.

“The Court finds that the complaint alleges conduct that would be unconstitutional if directed at any detainee, and therefore finds that the rights allegedly violated were clearly established at the time of the alleged conduct,” wrote Judge White.

“My own feeling is that the qualified immunity section of his opinion could be read broadly,” said Jonathan Freiman, a lawyer representing Padilla in the case, who was pleased with Friday’s decision.

Ruthann Robson, a constitutional law professor at the City University of New York and contributor to Constitutional Law Prof Blog, agreed that “getting past the qualified immunity argument was a big hurdle for the plaintiff.”

Yoo also claimed that he can’t be sued because the connection between his writing legal memos that justified brutal interrogation tactics and any actual tactics used on Padilla is too tenuous. Judge White rejected that argument as well. “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct,” wrote Judge White, who was appointed to the court by President George W. Bush. That mistreatment would follow from an authoritative legal memo advising the executive branch that those specific acts of abuse were lawful is not a stretch, he found, which could bode well for other plaintiffs. The legal complaint also specifically charges that Yoo helped develop the government’s policy in the “war on terror”, and specifically recommended that the government designate Jose Padilla as an “enemy combatant.” Judge White wrote that if that turns out to be true (the facts alleged are assumed true at this stage of the case), then Yoo could be legally liable for Padilla’s treatment.

Interestingly, one important factor that the court found weighed in favor of Padilla’s right to sue is that the United States had not afforded him an alternative remedy for the abuse he claims he suffered. Habeas corpus proceedings in federal court, for example, were not sufficient because they don’t provide a remedy against the individual federal officials who developed the challenged policies. The fact that the U.S. government has not developed an alternative means of compensating people who were tortured, mistreated or wrongly deemed “enemy combatants” also weighed in Padilla’s favor.

Interestingly, the fact that the U.S. government has no current plans to prosecute anyone for developing and carrying out illegal policies under the previous administration also helped Padilla. The court quoted news reports such as one in The New York Times saying that “President Obama has shown little interest in prosecuting officials of the previous administration, and it is not clear whether there will be a government sponsored investigation of Bush administration policies.”

“This ruling gives hope that the courts will not shy away from accountability for those who designed and implemented the last administration’s torture policy,” said Freiman, Padilla’s lawyer.

Indeed, the part of the opinion that seemed to most hearten constitutional lawyers was the court’s refusal to allow Yoo to shield the writing of his memos from judicial review.

The court noted what it called “the irony” of Yoo’s position, that “Yoo drafted legal cover to shield review of the conduct of federal officials” and now argues to the court “that the very drafting itself should be shielded from judicial review.”

As Warren describes it, Judge White’s ruling means that legal memos like Yoo’s “should not be a defense for people who are implicated in torture and abuse that they should have known was wrong.”

That could have implications for some of the cases that have been brought against Yoo in Europe, said Warren. A case is pending against Yoo in Spain, and CCR has filed a case in Germany under the theory of “universal jurisdiction” for human rights abuses. The judge is saying that “the mere writing of these memos can’t shield the writer,” said Warren.

John Yoo, for his part, has consistently maintained that the San Francisco lawsuit is an abuse of the civil justice system. As he wrote last year about the case in The Wall Street Journal: “The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.”