U.S. court of Appeals for the Fourth Circuit

Spain Ready to Proceed with Case Over the 1989 Killing of Jesuit Priests in El Salvador

For the last nine years, a court in Spain has been trying to obtain the presence of 20 former Salvadoran military officers to face trial on their alleged involvement in the 1989 murders of six Jesuit priests and their housekeeper and her daughter in El Salvador. Recently one of them—Inocente Orlando Montano Morales (“Montano”)—Is about to be sent to Spain for trial.[1]

Montano

Former Colonel Montano was the deputy minister of Salvadoran Public Security from 1989 to 1992 and since April 2015 has been the subject of a judicial request by the U.S. Department of Justice for his extradition from the U.S. to Spain to face these charges.

On February 4, 2016, a Magistrate Judge in the U.S. District Court for the District Court of the Eastern District of North Carolina, after an evidentiary hearing, granted this request for extradition based upon the following conclusions: the court had personal jurisdiction over Montano; the U.S. and Spain had an extradition treaty; Montano had been charged with extraditable offenses under that treaty (the terrorist murder of five Jesuit priests of Spanish original nationality); and there was probable cause the Montano committed these offenses.[2]

Montano then exercised his only means of appealing that order by filing in April 2016 an application for a writ of habeas corpus in the same court. After briefing and a hearing, a district judge of that court in August 2017, granted the U.S. government’s motion to dismiss the application and dismissed the application. This was based on the court’s conclusion that this extradition followed accepted practice and did not appear to be infirm; the treaty “provides for the extradition of a defendant charged with murder when committed outside the territory of the requesting nation {Spain]; . . . [its] laws allow for such a prosecution; and the laws of the requested nation [the U.S.] would allow for a prosecution in similar circumstances.”[3]

Montano then appealed this order to the U.S. Court of Appeals for the Fourth Circuit and simultaneously asked the district court for a stay or postponement of his extradition. This was denied by the district court on September 6 after concluding that he has “failed to make a strong showing that he is likely to succeed on the merits [of his appeal]” and “cannot demonstrate that he will suffer irreparable injury in the absence of a stay.” Thereafter simple denials of the request for a stay were entered on September 28 by the Fourth Circuit and on November 15 by U.S. Supreme Court Chief Justice John Roberts.[4]

Undoubtedly important in Chief Justice Roberts’ denial of a stay was the brief in opposition to such a stay that was submitted by the U.S. Solicitor General, the principal attorney for the U.S. in the U.S. Supreme Court. In its first three of 29 pages, before setting forth a detailed review and approval of the lower courts’ actions, that brief set forth the following facts from the record: “Toward the end of that war [between the military –led government and a leftist guerrilla group]– on November 16, 1989—members of the El Salvador Armed Forces . . . murdered six Jesuit priests, their housekeeper, and the housekeeper’s daughter at the Universidad Centroamerica (UCA) in El Salvador. . . . Five of them were Spanish nationals.” Moreover, evidence submitted by the Spanish authorities showed that “in the days leading up to the murders, the . . . radio station that [Montano] oversaw made threats against the Jesuit priests; that on the day before the murders, [Montano] participated in a meeting at which one of this fellow officers gave the order to kill the priests; that [Montano] provided ‘necessary information’—namely, the location of one of the priests—to those who carried out the murders; and that following the murders, [Montano] attempted to conceal [the Armed Forces] involvement by threatening the wife of a witness.”[5]

The Solicitor General concluded his brief with these comments: “the [U.S.] has a strong interest in having extradition requests resolved without undue delay, both to comply with its treaty obligations and to further its reciprocal interest in having other Nations cooperate swiftly with its own extradition requests and other law enforcement objectives.” Moreover, “Spain is an important partner of the [U.S.] in terrorism and other cases of national importance, and timely compliance with its extradition requests advances the [U.S.’] foreign policy and law enforcement interests.” (Pp. 27-28.)

As a result, Montano is now headed for imminent extradition to Spain. Almudena Bernabéu, an expert from the Center for Justice and Accountability (CJA) and a private prosecutor of the Jesuits case in Spain with her organization Guernica 37, said about four weeks ago the State Department determined that extradition was appropriate. “From that moment, the two countries are ready for delivery and reception of Montano, but they did not want to do it” until he had exhausted all of his U.S. remedies.

Other Former Salvadoran Military Officers

Of the other 19 former Salvadoran military officers charged with this horrible crime, one was convicted of the crime in El Salvador and was re-imprisoned after its Supreme Court invalidated its Amnesty law, one (former Defense Minister Emilio Ponce) is deceased and two others are cooperating with the Spanish prosecutors (Yussy Mendoza and Camilo Hernandez).

These other 15 still live in their home country, but its Supreme Court twice (2012 and 2016) has denied their extradition to Spain.

Manuel Escalante, a human rights lawyer at Jose Simeon Canas Central American University, where the murdered priests lived and worked and were murdered, after learning of the imminent extradition of Montano, called for prosecution of the 14 in El Salvador. He said that a conviction in Spain would be a big step toward “eliminating historical impunity” and that Salvadoran prosecutors must also act to advance the case in the Central American nation. The victims and their defenders “are going to seek justice. We are going to ask for the reopening of the trial.”[6]

The university, however, previously had said it considers the case closed against those who carried out the killings and even has called for clemency for former Col. Guillermo Benavides, who has served four years of a 30-year sentence as the only military official in prison for his role in the crime.

================================================

[1] The charges subsequently were reduced to terrorist murder of the five priests of original Spanish nationality as a result of an amendment to Spain’s statute on universal jurisdiction. The priests, their murders, judicial proceedings about this crime, including the Spanish case, and these extradition proceeding have been discussed in the posts listed in “The Jesuit Priests” section in List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2] Certification of Extraditability & Order of Commitment, In re Request by Spain for the Extradition of Montano, Montano v. Elks. No. 2:15-MJ-1021-KS (E.D.N.C. Feb. 5, 2016).

[3] Order, Montano v. Elks, No. 5-16-HC-2066-BO (E.D.N.C. Aug. 21, 2017).

[4] Order, Montano v. Elks, No. 5-16-HC-2066-BO (E.D.N.C.. Sept. 6, 2017); Order, Montano v. Elks, N0. 17-7091 (4^th Cir. Sept. 28, 2017); Order, Montano v. Elks, No. 17A445 (U.S. Sup. Ct. Nov. 15, 2017); Drew, Last hurdle cleared for ex-Salvadoran official’s extradition, Assoc. Press (Nov. 15, 2017); Labrador & Rauda, Colonel Montano to Spain for the murder of the Jesuits, El Faro (Nov. 15, 2017); Progress in Jesuit murder case on 28^th anniversary, El Salvador Perspectives (Nov. 16, 2017); Alonso, The Supreme Court of the United States approves extraditing a Salvadoran ex-military man to Spain for the killing of the six Jesuits, El Pais (Nov. 15, 2017).

[5] Memorandum for the Federal Respondents in Opposition, Montano v. Elks, No. 17A445 (U.S. Sup. Ct. Nov. 8, 2017).

[6] Assoc. Press, El Salvador Jesuits Seek Reopening of Case in 1989 Massacre, N.Y. Times (Nov. 16, 2017); Lafuente, A halo of justice in the killing of the Jesuits in El Salvador, El Pais (Nov. 17, 2017.

Alien Tort Statute Case Against a Corporation Is Settled with Its Payment of $5.28 Million

On October 5, 2012, Engility Corporation (formerly known as L-3 Services, Inc. and as Titan Corporation and hereafter “Titan” or “Engility”) paid $5.28 million to settle claims brought by 71 Iraqi citizens for the corporation’s alleged participation in their torture and inhuman treatment at the now notorious Abu Ghraib and other prisons in that country.[1]

Proceedings in the Case Against Engility

The case started in June 2008 in the U.S. District Court for the District of Maryland. The complaint, which was twice amended by October 2008, asserted that during 2003 through 2007 the plaintiffs were tortured at these prisons, which were then under the control of the U.S. Armed Forces. At that time L-3 Services, Inc. was a private contractor that provided translators at the prisons who allegedly participated in, or approved of, the torture and inhuman treatment. The alleged acts of torture and cruel, inhuman and degrading treatment included sexual assault, sleep deprivation, electric shocks, threats (including use of unleashed dogs) and denial of medical treatment.

The complaints sought unspecified compensatory and punitive damages and attorneys’ fees under the Alien Tort Statute (“ATS”)[2] and state tort law (assault and battery, intentional infliction of emotional distress and negligent hiring and supervision of employees).

On July 29, 2010, U.S. District Judge Peter J. Messitte denied L-3’s motion to dismiss the complaint. The court’s careful and detailed opinion ruled that (a) aliens who had been detained abroad by the U.S. were not barred from bringing suit in U.S. courts over their detention; (b) private government contractors were not immune from such suits; (c) the political question doctrine did not apply and, therefore, the case was justiciable; (d) private parties, including corporations, were subject to ATS claims for war crimes, torture and cruel, inhuman and degrading treatment; and (e) Iraqi law, not Maryland law, applied to the state-law claims possibly subject to Maryland public policy forbidding such application of foreign law.[3]

Immediately after that decision, Titan filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit. A three-judge panel of that court, 2 to 1, in September 2011, reversed the district court while deciding that the plaintiffs’ state law claims were preempted by federal law and that the case should be dismissed. This decision, however, was overturned by the entire Fourth Circuit in May 2012, when it decided, 11 to 3, that it did not have interlocutory jurisdiction to consider the appeal on the merits.

Thereafter the case was remanded to the district court after the Fourth Circuit had denied Engility’s motion to stay the remand pending the filing and resolution of the corporation’s forthcoming petition for review by the U.S. Supreme Court.

After the remand and Engility’s failure to file a petition with the Supreme Court, the parties on October 5, 2012, agreed to the previously mentioned settlement, and on October 10th the plaintiffs dismissed their case and thereby terminated the litigation.

Comments

This case was sponsored by New York City’s Center for Constitutional Rights, which is “dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.”

The Center’s extensive experience and expertise in litigating cases against corporations under the ATS and other laws are exceedingly important for successful prosecution of these cases. Their backing also provides the resources, persistence and stamina necessary to conduct such cases over a long time period (here, over four years) in various courts.

A similar case is pending in the federal court in Virginia in preparation for trial against another U.S. corporation, CACI International, Inc., which also was involved in interrogation and translation of detainees at Abu Ghraib and other Iraqi prisons. It is in pretrial discovery awaiting trial and is also sponsored by the Center for Constitutional Rights. It was reviewed in a prior post.

Another similar case sponsored by the Center, Saleh v. Titan, was brought by more than 250 Iraqi plaintiffs against CACI International, Inc. and Titan. In September 2009 the U.S. Court of Appeals for the District of Columbia, 2 to 1, affirmed the dismissal of all claims against Titan and, reversing to the district court, also dismissed all claims against CACI. On June 27, 2011, the U.S. Supreme Court denied the plaintiffs petition for certiorari, thereby ending this case.

Overhanging all of these cases is another case awaiting decision in the U.S. Supreme Court–Kiobel v. Royal Dutch Petroleum (Shell)–that raises the issue whether corporations may be sued under the ATS. This case has been discussed in prior posts.

[1] The settlement is described in an SEC filing by Engility’s parent company (Engility Holdings, Inc.’s Quarterly 10-Q Report at 11 (Nov. 13, 2012)); Cushman, Contractor Settles Case in Iraq Prison Abuse, N.Y. Times (Jan. 8, 2013); Yost, Abu Ghraib Settlement: Defense Contractor Engility Holdings Pays $5M To Iraqi Torture Detainees, Huffington Post (Jan. 8, 2013); Assoc. Press, Iraqis Held at Abu Ghraib, Other Sites Receive $5 Million, W.S. J. (Jan. 9, 2013).

[2] Prior posts have discussed the Alien Tort Statute.

[3] District Judge Peter J. Messitte, was a 1966 classmate of mine at the University of Chicago Law School.

Appellate Court Affirms Denial of Common Law Immunity to Former Somali Official

As discussed in a prior post, on February 15, 2011, the U.S. District Court for the Eastern District of Virginia decided that a former Somali General, Mohamed Ali Samantar, was not entitled to the former foreign government official immunity under federal common law.[1]

On November 2, 2012, the U.S. Court of Appeals for the Fourth Circuit affirmed this decision in an opinion that provided an interesting analysis of the role and power of the U.S. Department of State and of the federal courts in making decisions on immunity of foreign officials in civil lawsuits.

First, the appellate court said that there was common law immunity for a foreign head-of-state and that the courts must give “absolute deference” to the State Department’s position on such claims. This conclusion was based on the U.S. Constitution’s assignment in Article II, § 3, of the power to “receive Ambassadors and other public Ministers” to the Executive Branch. The State Department, however, has never recognized Samantar as the head of state for Somalia. Therefore, this type of immunity was not applicable in this case.

Second, the Fourth Circuit held that federal common law also provided immunity for foreign government officials who were not heads of state and that State Department’s determinations on such claims carried “substantial weight” for the courts, but were “not controlling.”

The latter type of immunity, said the Fourth Circuit, is based on the “foreign official’s actions, not his or her status, and therefore applies whether the individual is currently a government official or not.” But not all such actions are entitled to such immunity. Indeed, the court concluded that “under international and [U.S.] domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.”

The appellate court correctly observed, “A jus cogens norm, also known as a ‘preemptory norm of general international law,’ can be defined as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Moreover, “Prohibitions against the acts involved in this case–torture, summary execution and prolonged arbitrary imprisonment–are among these universally agreed-upon [jus cogens] norms.”

In this case, the Fourth Circuit added, the State Department suggested to the court that Samantar was not entitled to the foreign official immunity because there was no Somali government to assert this immunity for him and because he was a permanent resident alien of the U.S. These are additional factors supporting the denial of this immunity to Samantar.

Therefore, Samantar was not entitled to the latter type of immunity.[2]

[1] Thereafter the district court held him liable for $21 million of compensatory and punitive damages in a civil lawsuit under the U.S. Alien Tort Statute and Torture Victims Protection Act.

[2] See also Roberts, 4th Circuit again denies immunity in Samantar, IntLawGrrls (Nov. 6, 2012).

Case Against Corporations Under the Alien Tort Statute Is Allowed To Proceed

On November 1, 2012, the U.S. District Court for the District of Eastern Virginia allowed a lawsuit by four Iraqis to proceed against two U.S. corporations for their alleged direct participation in torture and other illegal conduct at Iraq’s Abu Ghraib prison.

The case, Al Shimari v. CACI, which was commenced in June 2008, has had a complex history.[1]

In March 2009, the district court granted the corporations’ motion to dismiss the claims under the U.S. Alien Tort Statute (ATS), but denied the motion to dismiss the other claims under state common law for assault, battery, sexual assault, infliction of emotional distress, and negligent hiring and supervision. (Al Shimari v. CACI, 657 F. Supp. 2d 700 (E.D. Va. 2009).)

In September 2011 a panel of the U.S. Court of Appeals for the Fourth Circuit, 2-1, reversed the district court’s denial of the motion to dismiss the state law claims on the ground that the corporate defendants were immune.

However, in May 2012, that court, en banc, dismissed the defendants’ appeal on the procedural ground that the appellate court had no jurisdiction over the premature appeal. The appellate court, therefore, remanded the case to the district court. (Al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc).)

On October 11, 2012, the plaintiffs moved the district court to reverse its March 2009 decision and reinstate the ATS claims. (Plaintiffs’ Memorandum of Law in Support of Their Motion Seeking Reinstatement of the Alien Tort Statute Claims, Al Shimari v. CACI, No.1:08CV827 (E.D. Va. Oct. 11, 2012).)

On November 1st the court did just that with an order to follow. (Civil Minutes, Al Shimari v. CACI, No.1:08CV827 (E.D. Va. Nov. 1, 2012).)

This plaintiffs’ victory may be short-lived because the U.S. Supreme Court has a case under advisement on the issue of whether corporations may be held liable under the ATS.

[1] See generally Center for Const’l Rights, Al Shimari v. CACI.

U.S. Supreme Court Decides that Foreign Sovereign Immunities Act Does Not Apply to Former Foreign Government Official

As discussed in a prior post, the U.S. Foreign Sovereign Immunities Act (FSIA) codifies the conditions for a U.S. court’s deciding that a “foreign state” as defined in that statute shall be granted immunity from a lawsuit in the U.S. courts.

The issue of whether the FSIA applied to individuals who had been officials of a foreign state was raised in a case brought by four Somalis against former Somali General Mohamed Ali Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).

The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

U.S. District Judge Leonie Brinkema of the Eastern District of Virginia[2] in August 2007 dismissed the case on the ground that Samantar was an “agency or instrumentality of” the state of Somalia and, therefore, entitled to immunity under FSIA (2007 U.S. Dist. LEXIS 56227). This judgment was reversed in January 2009 by the U.S. Court of Appeals for the Fourth Circuit (552 F.3d 371) on the ground that the FSIA did not cover individuals, after which the U.S. Supreme Court agreed to review the case.

In Yousuf v. Samantar, 560 U.S.__, 130 S. Ct. 2278, 176 L.Ed.2d 1047 (2010), the Supreme Court decided, 9 to 0, that the FSIA did not apply to government officials and that the immunity of such individuals was a matter of federal common law.[3]

In an opinion for the Supreme Court by Justice Stevens that was joined by Chief Justice Roberts and five Associate Justices (Kennedy, Ginsburg, Breyer, Alito and Sotomayor), Justice Stevens said there was nothing in the FSIA suggesting that “foreign state” should be read to include an official acting on behalf of that state. Indeed, according to the opinion, FSIA specifies that a foreign state “includes a political subdivision . . . or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or instrumentality,” §1603(b). Moreover, the statutory “agency or instrumentality” definition militates against its covering individuals.

The Court’s opinion also stated that FSIA’s history and purposes do not support an argument that the Act governs individual immunity claims. There is little reason to presume, said the Court, that when Congress codified state immunity, it intended to codify, sub silentio, official immunity. [4]

The Supreme Court remanded the case to the district court for its determination in the first instance as to whether Samantar was entitled to any common law immunity.

Upon remand, as will be discussed in a subsequent post, the district court decided that Samantar was not entitled to common law immunity and awarded the plaintiffs compensatory and punitive damages of $21 million.

[1] This case was supported by the Center for Justice and Accountability, a human rights NGO based in San Francisco, California.

[2] Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.

[3] According to John B. Bellinger, III, a former Legal Adviser to the U.S. State Department, this Supreme Court decision vindicated the position of the Department’s Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by federal common law and customary international law as articulated by the Executive Branch, rather than by FSIA. But, says Bellinger, the decision will place a burden on that Office, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the U.S.

[4] Justices Alito, Thomas and Scalia each filed concurring opinions to say that the Court’s references to FSIA’s legislative history were unnecessary.

Federal Appellate Court Grants Immunity to Author of Legal Memoranda Regarding U.S. Detention and Interrogation of Suspects in the “War on Terrorism”

On May 2, 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco unanimously held that John Yoo was immune from civil liability to Jose Padilla (and his mother) for Yoo’s authoring legal memoranda in 2001-2003 for the U.S. Department of Justice regarding the detention and interrogation of U.S. citizens who had been declared to be “enemy combatants.”

This civil case arises out of Padilla’s arrest and detention by U.S. military officials. In May 2002 Padilla was arrested at O’Hare International Airport near Chicago on suspicion of plotting a radiological bomb attack in the U.S. and was detained under a federal material witness arrest warrant until June 9, 2002, when President George W. Bush declared Padilla to be an “enemy combatant.” For the next 3 and a half years Padilla was detained in a military brig where he repeatedly was subjected to sleep deprivation, shakling, stress positions, solitary confinement and administration of psychotropic drugs. In January 2006 he was transferred to a federal civilian detention facility in Miami, Florida, where a federal jury in August 2007 found him guilty of conspiring to kill people and to support overseas terrorism and a federal judge in January 2008 sentenced him to 17.3 years imprisonment. This conviction was affirmed in September 2011 by the U.S. Court of Appeals for the Fourth Circuit, which vacated the 17.3 sentence as too lenient. The case was remanded to the district court where the case awaits the new sentencing.

This civil case was commenced by Padilla and his mother in January 2008. The complaint alleged that Yoo, as an attorney in the U.S. Department of Justice’s Office of Legal Counsel, had authored various legal memoranda that provided purported legal justification for Padilla’s detention and interrogation, all in violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution, Article III and the Habeas Suspension and Treason Clauses of the Constitution and a federal statute. The complaint sought nominal damages of one dollar and a declaration that his treatment violated these constitutional and statutory provisions.

After the district court denied Yoo’s motion to dismiss the complaint, he appealed to the Ninth Circuit, which reversed the trial court on the previously mentioned immunity ground.

The Ninth Circuit correctly concluded that this appeal was governed by the U.S. Supreme Court’s 2011 decision, Ashcroft v. al-Kidd, 131 S. Ct. 2974, which held that “[q]ualifed immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” The alleged right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

With this major premise in hand, the Ninth Circuit then concluded that in 2001-2003, when Yoo was at the Department of Justice, it was not clearly established that a U.S. citizen held in military detention as an enemy combatant was entitled to the same constitutional and statutory rights as convicted prisoners and that Padilla’s treatment amounted to torture.

John Yoo himself in an op-ed article in the Wall Street Journal naturally applauded the decision. His resistance to this lawsuit, he said, was “not just to defend the tough decisions that had to be made after 9/11. We fought to protect the nation’s ability to fight and win the war against al Qaeda—and other enemies—in the future.”

Yoo also launched bitter attacks on human rights groups that support lawsuits like the one against him and others who hold opposite opinions on the interrogation tactics. Such groups, he said, seek to “advance their agenda by legally harassing officials, agents and soldiers, and so raise the costs of public service to anyone who does not hew to their extreme, unreasonable views.” Democratic Representative Nancy Pelosi was cited by Yoo as being misleading on the substance of a briefing by the CIA on its interrogation tactics. President Obama, according to Yoo, lacked “backbone” by declaring “the CIA’s interrogation methods to be ‘torture’ before the courts or his own Justice Department had delivered a considered opinion . . . [by launching] an independent counsel to hound CIA agents, even though career prosecutors had already looked into claims of abuse and found no charges appropriate . . . [by trying] to close Guantanamo Bay without any real alternative . . . [by stalling] special military commissions established by President Bush and ratified by Congress, and [by relying] on drones to kill rather than capture al Qaeda leaders for their intelligence.”

The Wall Street Journal, a long-time supporter of Mr. Yoo and the other authors of the legal memoranda in question, also welcomed the Ninth Circuit’s decision. The Journal declared in an editorial that the decision “vindicates the principle that government officials are immune from private litigation for their national-security decisions. The law has long held that executive branch officials can’t be sued for other than criminal acts so they can carry out their duties in the best interests of the country without threat of personal liability.” More vindictively, the Journal said the decision was a “watershed for repudiating sham tort claims whose goal is to intimidate—and perhaps bankrupt—anyone who dares to treat terrorists differently from shoplifters. In a better world, Padilla’s pals at the ACLU and the . . . [Yale Law School] Human Rights Clinic would be hit with sanctions and a bill for Mr. Yoo’s costs.”

The New York Times, on the other hand, criticized this decision. Its editorial acknowledged that the Ninth Circuit followed, as it had to, a U.S. Supreme Court ruling in 2011 that the so-called qualified immunity existed unless “existing precedent” put the claimed right “beyond debate.” This Supreme Court decision, however, had changed the legal standard for such immunity; previously it had required that a reasonable person would have known about the alleged right he allegedly had violated.

According to the New York Times, the Ninth Circuit’s decision this week showed why the new Supreme Court standard was “unworkable.” The newspaper said “the Bush administration manufactured both ‘debates’ — about torture and enemy combatants. . . . By using the ‘enemy combatant’ category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.” The Ninth Circuit decision can be used, the Times said, by future administrations “to pull the same stunt as cover for some other outrage.”

In the meantime, as reported in a prior post, Yoo and five other authors of the legal memoranda regarding detention and interrogation of individuals in the so-called war on terrorism are the suspects in a criminal case in Spain under the principle of universal jurisdiction that the trial court had temporarily dismissed or stayed so that the issues could be pursued in the U.S. On March 23, 2012, an appeals court in Spain affirmed the trial court’s decision. However, three of the 17 members of this appellate court dissented on the grounds that the conduct authorized by these memoranda were crimes under international and Spanish law and that the requirements for a Spanish court to defer to U.S. authorities under Spain’s concept of “subsidiarity” had not been satisfied.