                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JOSE PADILLA and ESTELA LEBRON,                   No. 09-16478
               Plaintiffs-Appellees,
                v.                                  D.C. No.
                                                3:08-cv-00035-JSW
JOHN YOO,
                                                     OPINION
              Defendant-Appellant.
                                           
         Appeal from the United States District Court
            for the Northern District of California
          Jeffrey S. White, District Judge, Presiding

                    Argued and Submitted
           June 14, 2010—San Francisco, California
             Submission vacated October 18, 2010
                Resubmitted December 8, 2011

                        Filed May 2, 2012

      Before: Raymond C. Fisher and N. Randy Smith,
         Circuit Judges, and Rebecca R. Pallmeyer,
                     District Judge.*,**

                     Opinion by Judge Fisher




   *The Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
   **Judge Smith was drawn to replace Judge Pamela A. Rymer on the
panel following Judge Rymer’s untimely death. Judge Smith has read the
briefs, reviewed the record and listened to the tape of oral argument.

                                 4505
                      PADILLA v. YOO                    4509
                         COUNSEL

Miguel A. Estrada (argued) and Scott P. Martin, Gibson,
Dunn & Crutcher LLP, Washington, D.C., for the appellant.

Jonathan M. Freiman (argued), Hope R. Metcalf, Tahlia
Townsend and Amos E. Friedland, New Haven, Connecticut;
Natalie L. Bridgeman, San Francisco, California, for the
appellees.

Paul J. Orfanedes, Washington, D.C., for amicus curiae Judi-
cial Watch, Inc.

Michael F. Hertz, Deputy Assistant Attorney General, Bar-
bara L. Herwig and Robert M. Loeb, U.S. Department of Jus-
tice, Washington, D.C., for amicus curiae United States.

Peter B. Ellis and Usha-Kiran K. Ghia, Foley Hoag LLP, Bos-
ton, Massachusetts, for amici curiae Bruce Fein, Roberts B.
Owen and Michael P. Scharf.

Eric L. Lewis, Baach Robinson & Lewis PLLC, Washington,
D.C.; Elizabeth A. Wilson, John C. Whitehead School of
Diplomacy and International Relations, Seton Hall University,
South Orange, New Jersey, for amici curiae Distinguished
Professors of Constitutional and Federal Courts Law.

Hamid Jabbar, Scottsdale, Arizona; Hirad D. Dadgostar, Los
Angeles, California; Dawinder S. Sidhu, Potomac, Maryland,
for amici curiae Legal Ethics Scholars.


                         OPINION

FISHER, Circuit Judge:

   After the September 11, 2011 attacks on the United States,
the government detained Jose Padilla, an American citizen, as
4510                    PADILLA v. YOO
an enemy combatant. Padilla alleges that he was held incom-
municado in military detention, subjected to coercive interro-
gation techniques and detained under harsh conditions of
confinement, all in violation of his constitutional and statutory
rights. In this lawsuit, plaintiffs Padilla and his mother, Estela
Lebron, seek to hold defendant John Yoo, who was the Dep-
uty Assistant Attorney General in the U.S. Department of Jus-
tice’s Office of Legal Counsel (OLC) from 2001 to 2003,
liable for damages they allege they suffered from these
unlawful actions. Under recent Supreme Court law, however,
we are compelled to conclude that, regardless of the legality
of Padilla’s detention and the wisdom of Yoo’s judgments, at
the time he acted the law was not “sufficiently clear that every
reasonable official would have understood that what he [wa]s
doing violate[d]” the plaintiffs’ rights. Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2083 (2011) (internal quotation marks omit-
ted). We therefore hold that Yoo must be granted qualified
immunity, and accordingly reverse the decision of the district
court.

   As we explain below, we reach this conclusion for two rea-
sons. First, although during Yoo’s tenure at OLC the constitu-
tional rights of convicted prisoners and persons subject to
ordinary criminal process were, in many respects, clearly
established, it was not “beyond debate” at that time that
Padilla — who was not a convicted prisoner or criminal
defendant, but a suspected terrorist designated an enemy com-
batant and confined to military detention by order of the Pres-
ident — was entitled to the same constitutional protections as
an ordinary convicted prisoner or accused criminal. Id. Sec-
ond, although it has been clearly established for decades that
torture of an American citizen violates the Constitution, and
we assume without deciding that Padilla’s alleged treatment
rose to the level of torture, that such treatment was torture was
not clearly established in 2001-03.
                               PADILLA v. YOO                          4511
                          I.     BACKGROUND1

                                     A.

   In early May 2002, Padilla was arrested at Chicago O’Hare
International Airport pursuant to a material witness warrant
issued by the United States District Court for the Southern
District of New York. Compl. ¶ 35. He was transported to
New York, where he was held in custody in a federal deten-
tion facility. Id.

   On June 9, 2002, President George W. Bush issued an
order declaring Padilla an “enemy combatant” and directing
the Secretary of Defense to take Padilla into military custody.
Compl. ¶ 40. The presidential order asserted that Padilla was
“closely associated with al Qaeda”; that he had “engaged in
conduct that constituted hostile and war-like acts, including
conduct in preparation for acts of international terrorism that
had the aim to cause injury to or adverse effects on the United
States”; that he “possesse[d] intelligence, including intelli-
gence about personnel and activities of al Qaeda, that, if com-
municated to the U.S., would aid U.S. efforts to prevent
attacks by al Qaeda on the United States”; that he “repre-
sent[ed] a continuing, present and grave danger to the national
security of the United States”; and that his detention was
“necessary to prevent him from aiding al Qaeda in its efforts
to attack the United States or its armed forces, other govern-
mental personnel, or citizens.” Memorandum from President
  1
    Because Yoo appeals from the district court’s denial of a motion to dis-
miss, we recite the facts as they appear in the plaintiffs’ first amended
complaint. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th
Cir. 2010) (“We accept as true all well-pleaded allegations of material
fact, and construe them in the light most favorable to the non-moving
party.”). We emphasize that this factual background is based only on the
allegations of the plaintiffs’ complaint. Whether the plaintiffs’ allegations
are in fact true has not been decided in this litigation, and nothing we say
in this opinion should be understood otherwise.
4512                       PADILLA v. YOO
George W. Bush to the Secretary of Defense (June 9, 2002),
reprinted in Padilla v. Hanft, 423 F.3d 386, 389 (4th Cir. 2005).2

   In accordance with the President’s order, Padilla was trans-
ferred from the federal detention facility in New York to a
military brig in Charleston, South Carolina, where he was
held in military custody for more than three and a half years,
from June 2002 until January 2006. Compl. ¶¶ 1, 44. For a
substantial portion of this period, from June 2002 until March
2004, government officials denied Padilla all contact with
persons outside the brig, including his family and legal coun-
sel. Compl. ¶ 56.

   On January 5, 2006, Padilla was transferred from the mili-
tary brig to a federal detention center in Miami, Florida,
where he stood trial in federal district court on criminal
charges unrelated to the allegations that had been used to jus-
tify his military detention. Compl. ¶ 11. In August 2007, the
jury returned a verdict of guilty. Id. In September 2011, a
divided Eleventh Circuit panel affirmed Padilla’s conviction,
vacated his sentence as unreasonably low and remanded for
resentencing. See United States v. Jayyousi, 657 F.3d 1085,
1117-19 (11th Cir. 2011).

   Padilla and his mother, Estela Lebron, filed this civil action
against John Yoo, in his individual capacity, on January 4,
2008, two years after Padilla’s military detention ended. In
their first amended complaint, Padilla and Lebron alleged that
Padilla was imprisoned in the military brig without charge
and without the ability to defend himself or to challenge his
conditions of confinement. Compl. ¶ 1. They alleged that dur-
ing Padilla’s detention, he suffered gross physical and psy-
chological abuse upon the orders of high-ranking government
officials as part of a systematic program of abusive interroga-
  2
   The President’s memorandum, which the plaintiffs attached to their
complaint, is part of the record for purposes of Yoo’s motion to dismiss.
See Daniels-Hall, 629 F.3d at 998.
                        PADILLA v. YOO                     4513
tion mirroring the alleged abuses committed at Guatanamo
Bay, including extreme isolation; interrogation under threat of
torture, deportation and even death; prolonged sleep adjust-
ment and sensory deprivation; exposure to extreme tempera-
tures and noxious odors; denial of access to necessary medical
and psychiatric care; substantial interference with his ability
to practice his religion; and incommunicado detention for
almost two years, without access to family, counsel or the
courts. Id. They also alleged that Lebron was deprived of vir-
tually all contact with Padilla during his prolonged and alleg-
edly unlawful military detention, in violation of her
constitutional rights to familial association and communica-
tion. Compl. ¶ 2.

   The complaint alleged that Yoo is one of several current
and former government officials who abused their high posi-
tions to cause Padilla’s allegedly unlawful military detention
and interrogation. Compl. ¶ 3. From 2001 to 2003, Yoo was
Deputy Assistant Attorney General at OLC. Compl. ¶ 13.
Padilla and Lebron alleged that Yoo set in motion Padilla’s
allegedly illegal interrogation and detention, both by formu-
lating unlawful policies for the designation, detention and
interrogation of suspected “enemy combatants” and by issu-
ing legal memoranda designed to evade legal restraints on
those policies and to immunize those who implemented them.
Compl. ¶ 3. They alleged that, in doing so, Yoo abdicated his
ethical duties as a government attorney and abandoned his
office’s tradition of providing objective legal advice to the
President. Id.

   The complaint alleged that Yoo publicly acknowledged in
his book, War By Other Means, that he stepped beyond his
role as a lawyer to participate directly in developing policy in
the war on terrorism. Compl. ¶ 15. It alleged that Yoo shaped
government policy in his role as a key member of a small,
secretive and highly influential group of senior administration
officials known as the “War Council,” which met regularly
“to develop policy in the war on terrorism.” Id. It alleged that
4514                   PADILLA v. YOO
Yoo acted outside the scope of his employment at OLC by
taking instructions directly from White House Counsel
Alberto Gonzales and providing Gonzales with verbal and
written advice without first consulting Attorney General John
Ashcroft. Compl. ¶ 16. The complaint alleged that, in his role
as the de facto head of war-on-terrorism legal issues, Yoo
wrote and promulgated a series of memoranda that ultimately
led to Padilla’s allegedly unlawful treatment, including:

  • An October 23, 2001 memorandum from Yoo to Gon-
zales and Department of Defense General Counsel William J.
Haynes regarding Authority for Use of Military Force to
Combat Terrorist Activities Within the United States, which
concluded that “the Fourth Amendment had no application to
domestic military operations,” and that “restrictions outlined
in the Fifth Amendment simply do not address actions the
Executive takes in conducting a military campaign against the
nation’s enemies.”

   • A December 21, 2001 memorandum from Yoo to Haynes
regarding Possible Criminal Charges Against American Citi-
zen Who Was a Member of the Al Qaeda Terrorist Organiza-
tion or the Taliban Militia.

  • A January 9, 2002 draft memorandum from Yoo to
Haynes on the Application of Treaties and Laws to al Qaeda
and Taliban Detainees.

   • A January 22, 2002 memorandum to Gonzales signed by
then-Assistant Attorney General Jay Bybee but allegedly
drafted by Yoo on the Application of Treaties and Laws to al
Qaeda and Taliban Detainees.

   • A February 26, 2002 memorandum to Haynes signed by
Bybee but allegedly created by Yoo on Potential Legal Con-
straints Applicable to Interrogations of Persons Captured by
U.S. Armed Forces in Afghanistan.
                       PADILLA v. YOO                     4515
  • A May 2002 OLC memorandum regarding access to
counsel and legal mail by detainees held at the naval brigs at
Norfolk and Charleston.

   • A June 27, 2002 memorandum from Yoo to Assistant
Attorney General Daniel J. Bryant of the Office of Legislative
Affairs regarding The Applicability of 18 U.S.C. Sec. 4001(a)
to Military Detention of United States Citizens.

   • An August 1, 2002 memorandum to Gonzales, again
signed by Bybee but allegedly created by Yoo, on Standards
of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A,
concluding that an interrogation technique must cause damage
that rises “to the level of death, organ failure, or the perma-
nent impairment of a significant body function” in order to be
considered torture.

   • A second memorandum produced during August 2002
addressing the legality of particular interrogation techniques
that the CIA wished to employ.

  • A November 27, 2002 memorandum from Haynes that
Yoo allegedly reviewed and approved, recommending that
Secretary of Defense Donald Rumsfeld approve for use by the
military a range of aggressive interrogation techniques not
permitted by the military field manual.

   • A March 14, 2003 opinion from Yoo to Haynes on Mili-
tary Interrogation of Alien Unlawful Combatants Held Out-
side the United States, extending authority to use harsh
interrogation techniques against high-level prisoners held at
Guantanamo Bay and other facilities under Department of
Defense control, and approving the use of mind-altering drugs
during interrogations. Compl. ¶¶ 19-20.

   The complaint alleged that these memoranda advised that
there were no legal constraints on the Executive’s policies
with respect to the detention and interrogation of suspected
4516                   PADILLA v. YOO
terrorists. Compl. ¶ 21. It alleged that the memoranda “did not
provide the fair and impartial evaluation of the law required
by OLC tradition and the ethical obligations of an attorney to
provide the client with an exposition of the law adequate to
make an informed decision.” Compl. ¶ 22. Rather, it alleged
that Yoo “intentionally used the Memos to evade well-
established legal constraints and to justify illegal policy
choices that he knew had already been made — sometimes by
virtue of his own participation in the War Council.” Compl.
¶ 23.

   The complaint also alleged that Yoo personally participated
in Padilla’s unlawful military detention. Quoting from Yoo’s
book, it alleged that Yoo “personally ‘reviewed the material
on Padilla to determine whether he could qualify, legally, as
an enemy combatant, and issued an opinion to that effect.’ ”
Compl. ¶ 38. It alleged that Ashcroft relied on Yoo’s opinion
in recommending to the President that Padilla be taken into
military custody. Comp. ¶ 39.

   The complaint alleged that Padilla’s designation as an
enemy combatant, military detention, conditions of confine-
ment and program of interrogation violated his rights to pro-
cedural and substantive due process, not to be subjected to
cruel or unusual punishment or treatment that shocks the con-
science, to freely exercise his religion, of access to informa-
tion, to association with family members and friends, of
access to legal counsel, of access to the courts, against com-
pelled self-incrimination and against arbitrary and unconstitu-
tional seizure and military detention. Compl. ¶ 5. It alleged
violations of the First, Fourth, Fifth, Sixth and Eighth Amend-
ments to the United States Constitution, Article III of the
Constitution, the Habeas Suspension and Treason Clauses of
the Constitution and the Religious Freedom Restoration Act
(RFRA), 42 U.S.C. § 2000bb. Compl. ¶ 82.

  The complaint sought two remedies: a declaration that
Padilla’s treatment violated the Constitution and RFRA, and
                            PADILLA v. YOO                            4517
nominal money damages of one dollar. The plaintiffs subse-
quently agreed to dismiss their claims for declaratory relief,
leaving only a claim for nominal damages.

                                    B.

   Yoo moved to dismiss the action for failure to state a claim
upon which relief could be granted. See Fed. R. Civ. P.
12(b)(6). He argued that the complaint failed to state a claim
for money damages on three grounds. First, he argued that the
plaintiffs could not state an action for damages because
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), which recognized an implied
cause of action for damages against federal officials under
some circumstances, did not apply. Second, Yoo argued that
he was entitled to qualified immunity because the complaint
failed to allege facts sufficient to establish his personal
responsibility for the constitutional and statutory violations
alleged in the complaint. Third, Yoo argued that he was enti-
tled to qualified immunity because the complaint failed to
allege a violation of clearly established constitutional or statu-
tory rights.

   The district court denied Yoo’s motion. See Padilla v. Yoo,
633 F. Supp. 2d 1005 (N.D. Cal. 2009).3 The court concluded
that the plaintiffs could pursue a Bivens action, that the com-
plaint adequately alleged Yoo’s personal responsibility for
Padilla’s treatment and, as relevant here, that the complaint
alleged violations of clearly established constitutional and
statutory rights. See id. at 1030, 1032-34, 1036-39.
   3
     The court granted Yoo’s motion to dismiss in one respect, agreeing
with Yoo that the complaint did not state a claim for violation of Padilla’s
Fifth Amendment right against self-incrimination because Padilla was
never made to be a witness against himself and his statements were never
admitted as testimony against him in a criminal case. See Padilla, 633 F.
Supp. 2d at 1035-36. The plaintiffs did not appeal that ruling. In all
respects relevant to this appeal, the court denied Yoo’s motion.
4518                    PADILLA v. YOO
   With respect to this last issue, the district court acknowl-
edged Yoo’s argument that, at the time of Yoo’s tenure at
OLC, “no federal court ha[d] afforded an enemy combatant
the kind of constitutional protections Padilla seeks in this
case,” and that “courts ha[d] never attributed the level of con-
stitutional rights sought in this action” to enemy combatants
— a “unique type of detainee.” Id. at 1036. But the court con-
cluded that the complaint nonetheless alleged violations of
clearly established law because “the basic facts alleged in the
complaint clearly violate the rights afforded to citizens held
in the prison context,” and because all detainees, including
enemy combatants, must be afforded at least the rights to
which convicted prisoners are entitled. Id. at 1036-38 (empha-
sis added). The court explained:

    [A]lthough the legal framework relating to the desig-
    nation of a citizen as an enemy combatant was
    developing at the time of the conduct alleged in the
    complaint, federal officials were cognizant of the
    basic fundamental civil rights afforded to detainees
    under the United States Constitution. 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.

Id. at 1037-38 (citations and footnote omitted).

   The court accordingly concluded that Yoo was not entitled
to qualified immunity and denied Yoo’s motion to dismiss.
The crux of the district court’s decision for purposes of this
appeal is its assumption that any reasonable official would
have understood in 2001-03 that United States citizen enemy
combatants in military detention must be afforded at least the
constitutional and statutory rights afforded to ordinary prison
inmates.
                            PADILLA v. YOO                           4519
                                    C.

   Of relevance, a different federal district court reached a
contrary result in a related case. In February 2007, Padilla and
Lebron filed an action similar to this one in the United States
District Court for the District of South Carolina against for-
mer Secretary of Defense Rumsfeld, former Attorney General
Ashcroft, 11 other current or former government officials and
unnamed Doe defendants, including the individuals allegedly
responsible for Padilla’s interrogation at the military brig. In
February 2011, the district court dismissed the South Carolina
case for failure to state a claim, in part concluding that the
defendants were entitled to qualified immunity because the
complaint failed to allege that Padilla’s treatment violated
clearly established law. See Lebron v. Rumsfeld, 764 F. Supp.
2d 787 (D.S.C. 2011).

   First, the court rejected the proposition that Padilla’s desig-
nation as an enemy combatant and consequential military
detention violated his clearly established constitutional rights.
See id. at 802-03. The court noted that President Bush had
signed the order designating Padilla as an enemy combatant
in June 2002, and that courts had reached inconsistent conclu-
sions as to whether Padilla’s designation and detention were
lawful.4 The court said:
   4
     In 2002, the United States District Court for the Southern District of
New York ruled on Padilla’s first federal habeas petition, in which Padil-
la’s counsel, despite having no contact with Padilla, challenged Padilla’s
designation and detention as an enemy combatant. See Padilla ex rel.
Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002). The district court
concluded that the post-September 11th Authorization for Use of Military
Force, Pub. L. No. 107-40, 115 Stat. 224 (2001), permitted American citi-
zens to be detained without charge as enemy combatants, but that Padilla
had a right both to counsel and to a judicial forum in which to challenge
the factual basis of his detention. See Padilla, 233 F. Supp. 2d at 569-70.
The Second Circuit reversed on the first point, holding that only a clear
congressional statement could authorize the detention of an American citi-
zen without charge. See Padilla v. Rumsfeld, 352 F.3d 695, 698 (2d Cir.
4520                         PADILLA v. YOO
      In light of this quite extraordinary litigation history,
      the remarkable circumstances regarding the Presi-
      dent’s direct written order designating Padilla an
      enemy combatant, and the President’s direction to
      subordinate officials to detain Padilla, it is hard for
      the Court to imagine a credible argument that the
      alleged unlawfulness of Padilla’s designation as an
      enemy combatant and detention were “clearly estab-
      lished” at that time. The strikingly varying judicial
      decisions appear to be the very definition of unset-
      tled law, and the Fourth Circuit’s order, which is the
      law of the case, actually finds the detention and des-
      ignation lawful.

Id.

2003). In June 2004, the Supreme Court reversed the Second Circuit on
a jurisdictional ground, ruling that Padilla’s habeas petition should have
been filed in South Carolina, where he was detained, rather than New
York, where he had been seized. See Rumsfeld v. Padilla, 542 U.S. 426,
451 (2004).
   Padilla then filed his habeas petition in South Carolina. There, the U.S.
District Court for the District of South Carolina granted the petition, ruling
that Padilla’s detention violated the Constitution and laws of the United
States and that he therefore had to be either criminally charged or released.
See Padilla v. Hanft, 389 F. Supp. 2d 678, 692 (D.S.C. 2005). The Fourth
Circuit reversed, holding that the government could detain citizens without
charge, even if seized within the United States, if they have carried arms
against the U.S. in a foreign combat zone, as Padilla allegedly did. See
Padilla v. Hanft, 423 F.3d 386, 389-92 (4th Cir. 2005). After Padilla peti-
tioned for certiorari, and shortly before the government’s response was
due, the government transferred him to civilian custody and initiated crim-
inal proceedings against him in the United States District Court for the
Southern District of Florida, arguably mooting the petition. See Padilla v.
Hanft, 432 F.3d 582, 584, 587 (4th Cir. 2005) (order) (denying govern-
ment’s request for transfer); Hanft v. Padilla, 546 U.S. 1084, 1084-85
(2006) (granting the request). The Supreme Court thereafter denied certio-
rari, without reaching the merits of Padilla’s South Carolina habeas peti-
tion. See Padilla v. Hanft, 547 U.S. 1062 (2006).
                        PADILLA v. YOO                        4521
   Second, the court concluded that the manner in which
Padilla was treated while detained as an enemy combatant,
which included the alleged use of coercive interrogation tech-
niques, likewise did not constitute a violation of clearly estab-
lished constitutional law. See id. at 803-04. The court
reasoned that:

    At the time of . . . Padilla’s detention by the Depart-
    ment of Defense, there were few “bright lines”
    establishing controlling law on the rights of enemy
    combatants. No court had specifically and defini-
    tively addressed the rights of enemy combatants, and
    the Department of Justice had officially sanctioned
    the use of the techniques in question. While it is true
    there was vigorous intra-governmental debate on this
    issue during Padilla’s detention, the qualified immu-
    nity case law makes clear that government officials
    are not charged with predicting the outcome of legal
    challenges or to resolve open questions of law.

Id. (citation omitted) (quoting Maciariello v. Sumner, 973
F.2d 295, 298 (4th Cir. 1992)).

   Finally, the court concluded that Padilla’s treatment while
detained did not violate clearly established rights under
RFRA. See id. at 804-05. The court pointed out that “[n]o
American court during this period had ever definitively
addressed the potential applicability of the RFRA to persons
who were undergoing interrogation as enemy combatants.” Id.
at 804. The court accordingly held that the defendants were
entitled to qualified immunity on the plaintiffs’ RFRA claim
as well. See id. at 805.

   In January 2012, the Fourth Circuit affirmed dismissal of
the South Carolina action. See Lebron v. Rumsfeld, 670 F.3d
540 (4th Cir. 2012). The court affirmed dismissal of the plain-
tiffs’ constitutional claims for lack of a Bivens remedy. As
relevant here, the court also affirmed dismissal of the plain-
4522                    PADILLA v. YOO
tiffs’ RFRA claims on the basis of qualified immunity, hold-
ing that RFRA’s application “to the military detention setting”
was not clearly established at the time of the alleged viola-
tions. Id. at 560. The court “emphasized the substantial differ-
ences between individuals in civilian custody and individuals
in military custody.” Id. at 558.

   We asked the parties to file supplemental briefs addressing
the Fourth Circuit’s decision and, in particular, whether we
should give preclusive effect to the Fourth Circuit’s decision
under the doctrine of nonmutual defensive collateral estoppel.
The parties disagree about whether collateral estoppel should
apply. In view of our precedent, we choose to treat the Fourth
Circuit’s decision as persuasive precedent rather than afford-
ing it preclusive effect. See Af-Cap, Inc. v. Chevron Overseas
(Congo) Ltd., 475 F.3d 1080, 1086 (9th Cir. 2007). We none-
theless reach the same outcome as the Fourth Circuit,
although based on somewhat different reasoning. Whereas the
Fourth Circuit resolved the plaintiffs’ constitutional claims
under Bivens and relied on qualified immunity to resolve only
the plaintiffs’ RFRA claim, we resolve all claims under quali-
fied immunity.

                               D.

   Yoo timely appealed the district court’s order in this case
denying his motion to dismiss. We have jurisdiction under 28
U.S.C. § 1291, see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945-46
(2009), and we review de novo a district court’s denial of a
motion to dismiss on the basis of qualified immunity, see
Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir. 2010). “We
accept as true all well-pleaded allegations of material fact, and
construe them in the light most favorable to the non-moving
party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998
(9th Cir. 2010). “A complaint may survive a motion to dis-
miss if, taking all well-pleaded factual allegations as true, it
contains ‘enough facts to state a claim to relief that is plausi-
ble on its face.’ ” Coto Settlement v. Eisenberg, 593 F.3d
                        PADILLA v. YOO                     4523
1031, 1034 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at
1949).

                       II.   DISCUSSION

                              A.

    The outcome of this appeal is governed by the Supreme
Court’s decision in Ashcroft v. al-Kidd, 131 S. Ct. 2074
(2011), decided subsequent to the district court’s ruling
against Yoo. In al-Kidd, the plaintiff filed a Bivens action
against then-Attorney General Ashcroft, alleging that Ash-
croft violated al-Kidd’s Fourth Amendment rights by autho-
rizing federal prosecutors to obtain valid material witness
warrants for detention of terrorism suspects whom they would
otherwise lack probable cause to arrest. The complaint alleged
that, “in the aftermath of the September 11th terrorist attacks,
. . . Ashcroft authorized federal prosecutors and law enforce-
ment officials to use the material-witness statute to detain
individuals with suspected ties to terrorist organizations.” Id.
at 2079. It alleged “that federal officials had no intention of
calling most of these individuals as witnesses, and that they
were detained, at Ashcroft’s direction, because federal offi-
cials suspected them of supporting terrorism but lacked suffi-
cient evidence to charge them with a crime.” Id. The
complaint alleged that “this pretextual detention policy led to
the material-witness arrest of [Abdullah] al-Kidd, a native-
born United States citizen,” leading al-Kidd to file a Bivens
action challenging the constitutionality of Ashcroft’s alleged
policy as a violation of the Fourth Amendment’s prohibition
against unreasonable searches and seizures. Id. at 2079-80.
Al-Kidd conceded that individualized suspicion supported
issuance of the material witness arrest warrant, but argued that
the arrest was unconstitutional because of Ashcroft’s alleged
subjective intent to use the material witness statute as a pre-
text to detain terrorism suspects who officials never intended
to have testify. See id. at 2083. Ashcroft moved to dismiss
based on absolute and qualified immunity. See id. at 2079.
4524                     PADILLA v. YOO
The district court denied the motion and this court affirmed.
See id. at 2079-80. The Supreme Court reversed.

   [1] The Court began by reaffirming the general principle
that “[q]ualified 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.” Id. at 2080 (quoting Harlow v. Fitz-
gerald, 457 U.S. 800, 818 (1982)). Significant here, under the
second prong, a “Government official’s conduct violates
clearly established law when, at the time of the challenged
conduct, ‘[t]he contours of [a] right [are] sufficiently clear’
that every ‘reasonable official would have understood that
what he is doing violates that right.’ ” Id. at 2083 (alterations
in original) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). “We do not require a case directly on point, but
existing precedent must have placed the statutory or constitu-
tional question beyond debate.” Id. The Court emphasized
that “[q]ualified immunity gives government officials breath-
ing room to make reasonable but mistaken judgments about
open legal questions,” id. at 2085, and admonished us “not to
define clearly established law at a high level of generality,”
id. at 2084.

   Applying these principles, the Court concluded that al-
Kidd’s complaint fell “far short” of alleging a violation of
clearly established law. Id. at 2083. The Court observed that,
“[a]t the time of al-Kidd’s arrest, not a single judicial opinion
had held that pretext could render an objectively reasonable
arrest pursuant to a material-witness warrant unconstitution-
al.” Id. Furthermore, the Court’s decisions as a whole had
emphasized that Fourth Amendment reasonableness is “pre-
dominantly an objective inquiry,” id. at 2080 (quoting City of
Indianapolis v. Edmond, 531 U.S. 32, 47 (2000)) (internal
quotation marks omitted), asking “whether ‘the circum-
stances, viewed objectively, justify [the challenged] action,’ ”
id. (alteration in original) (quoting Scott v. United States, 436
                        PADILLA v. YOO                      4525
U.S. 128, 138 (1978)), “ ‘whatever the subjective intent’
motivating the relevant officials,” id. (quoting Whren v.
United States, 517 U.S. 806, 814 (1996)). Although the Court
had recognized certain “limited exception[s]” to this rule, id.
at 2080 (alteration in original) (quoting United States v.
Knights, 534 U.S. 112, 122 (2001)) (internal quotation marks
omitted), it had “almost uniformly rejected invitations to
probe subjective intent,” id. at 2081. The Court accordingly
held that Ashcroft did not violate clearly established law by
allegedly authorizing federal prosecutors to use material wit-
ness arrest warrants, supported objectively by reasonable sus-
picion, as a pretext for detaining terrorism suspects. See id. at
2085.

   Here, the complaint alleged that Yoo, as a Justice Depart-
ment attorney, participated in policy decisions and rendered
legal opinions that ultimately authorized federal officials to
designate Padilla as an enemy combatant, take him into mili-
tary custody, hold him incommunicado without access to the
courts or counsel and subject him to both coercive interroga-
tion techniques and harsh conditions of confinement, in viola-
tion of his constitutional and statutory rights.

   [2] Padilla and Lebron acknowledge that at the time Yoo
served as Deputy Assistant Attorney General at OLC, there
did not exist a “single judicial opinion,” id. at 2083, holding
that a United States citizen held in military detention as an
enemy combatant possessed rights against the kind of treat-
ment to which Padilla was subjected. They argue, however,
that it was clearly established that Padilla possessed such
rights because any reasonable official would have understood
during 2001 to 2003 that a citizen detained as an enemy com-
batant had to be afforded at least the constitutional protections
to which convicted prisoners and ordinary criminal suspects
were entitled. That argument is foreclosed by al-Kidd, which
compels us “not to define clearly established law at a high
level of generality.” Id. at 2084.
4526                    PADILLA v. YOO
   Granted, it may sometimes be permissible to rely on cases
involving one type of detainee to establish clearly established
constitutional rights of another type of detainee. See City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244-46 (1983)
(holding that pretrial detainees possess a constitutional right
against deliberate indifference to their serious medical needs
because the due process rights of a pretrial detainee are “at
least as great as the Eighth Amendment protections available
to a convicted prisoner”); Youngberg v. Romeo, 457 U.S. 307,
315-16, 321-22 (1982) (holding that mentally retarded indi-
viduals who are involuntarily committed to a state institution
have a constitutional right to reasonably safe conditions of
confinement under the due process clause of the Fourteenth
Amendment because “[p]ersons who have been involuntarily
committed are entitled to more considerate treatment and con-
ditions of confinement than criminals whose conditions of
confinement are designed to punish”); Hydrick v. Hunter, 500
F.3d 978, 989 (9th Cir. 2007) (holding that “the rights
afforded prisoners set a floor for those that must be afforded”
sexually violent predators subject to civil detention), vacated
and remanded on other grounds, 129 S. Ct. 2431 (2009); Or.
Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003)
(holding, in light of the Supreme Court’s “observation that the
due process rights of pretrial detainees are ‘at least as great as
the Eighth Amendment protections available to a convicted
prisoner,’ ” that the Eighth Amendment provides “a minimum
standard of care” for determining the rights of pretrial detain-
ees (quoting Revere, 463 U.S. at 244)). In Hydrick, for exam-
ple, we held that court decisions defining the constitutional
rights of prisoners could be relied upon to establish a floor for
the clearly established constitutional rights of persons who are
civilly detained as sexually violent predators, for whom the
law was at that time “still evolving.” 500 F.3d at 989. Central
to our holding, however, was the Supreme Court’s earlier
statement that “civilly detained persons must be afforded
‘more considerate treatment and conditions of confinement
than criminals whose conditions of confinement are designed
to punish.’ ” Id. (quoting Youngberg, 457 U.S. at 322).
                        PADILLA v. YOO                     4527
   [3] Here, of course, the Supreme Court had not, at the time
of Yoo’s tenure at OLC, declared that American citizens
detained as enemy combatants had to be treated at least as
well, or afforded at least the same constitutional and statutory
protections, as convicted prisoners. On the contrary, the
Supreme Court had suggested in Ex parte Quirin, 317 U.S. 1
(1942), the most germane precedent in existence at the time
of Yoo’s tenure at OLC, that a citizen detained as an unlawful
combatant could be afforded lesser rights than ordinary pris-
oners or individuals in ordinary criminal proceedings.

   In Quirin, the Court unanimously rejected the claim of a
United States citizen who was detained as an unlawful enemy
combatant that he was “entitled to be tried in the civil courts
with the safeguards, including trial by jury, which the Fifth
and Sixth Amendments guarantee to all persons charged in
such courts with criminal offenses.” Id. at 24. The petitioner
in question — Herbert Haupt — was a German agent who
claimed to be an American citizen. See id. at 20-22. He had
entered the United States to commit acts of sabotage in sup-
port of the German war effort. See id. at 21-22. He was cap-
tured on American soil, charged by the Judge Advocate
General’s Department of the Army with violations of the law
of war and the Articles of War and tried by a military com-
mission. See id. at 21-23. He argued in a habeas corpus peti-
tion that he was entitled under Article III and the Fifth and
Sixth Amendments to the Constitution to grand jury present-
ment and trial by jury. See id. at 38. The Court rejected his
claim, reasoning that unlawful belligerents had been subject
to military trial at the time of the Constitution’s adoption and
that neither Article III nor the Bill of Rights had been
intended to alter that practice. See id. at 39-44. That Haupt
was a citizen was immaterial; as an unlawful combatant he
was subject to trial by military tribunal alongside the alien
saboteurs with whom he was tried. See id. at 37-38, 44-45.

  Padilla and Lebron alternatively rely on the Supreme
Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004),
4528                        PADILLA v. YOO
to establish that Padilla’s treatment violated clearly estab-
lished law. In Hamdi, the Court held that a citizen detained as
an enemy combatant retains a fundamental “right to be free
from involuntary confinement by his own government with-
out due process of law.” Id. at 531 (plurality opinion). The
Court held that “a citizen-detainee seeking to challenge his
classification as an enemy combatant must receive notice of
the factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a neutral
decisionmaker.” Id. at 533. The Court also held that a citizen-
detainee “unquestionably has the right to access to counsel in
connection” with those proceedings. Id. at 539. Hamdi also
intimated that detention of enemy combatants for an interrog-
ative purpose may be impermissible, noting that the proper
purpose of detaining enemy combatants “is to prevent cap-
tured individuals from returning to the field of battle and tak-
ing up arms once again,” id. at 518 (citing Yasmin Naqvi,
Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross
571, 572 (2002)), and adding that “indefinite detention for the
purpose of interrogation” was not permitted by the act of Con-
gress authorizing the use of military force in Afghanistan, the
Authorization for Use of Military Force, Pub. L. No. 107-40,
115 Stat. 224 (2001), id. at 521; see also id. at 577-78 (Scalia,
J., dissenting) (suggesting that Congress would need to sus-
pend the Writ of Habeas Corpus before the government could
detain a United States citizen on American soil for the pur-
pose of “obtain[ing] intelligence through interrogation”).5
Hamdi also called into question the harsh treatment of enemy
combatant detainees, suggesting that the detention of enemy
combatants should be “devoid of all penal character,” id. at
518 (quoting W. Winthrop, Military Law and Precedents 788
(rev. 2d ed. 1920)) (internal quotation marks omitted), and
  5
    But see Hamdi, 542 U.S. at 595 (Thomas, J., dissenting) (concluding
that the government has an interest in “detaining an enemy soldier not
only to prevent him from rejoining the ongoing fight” but also “to gather
critical intelligence regarding the intentions and capabilities of our adver-
saries”).
                            PADILLA v. YOO                             4529
that enemy combatants should be “treated humanely” while
they are detained, id. at 519 (quoting In re Territo, 156 F.2d
142, 145 (9th Cir. 1946)) (internal quotation marks omitted).6
When measured against this language in Hamdi, Padilla’s
alleged cruel and degrading treatment appears to have been a
violation of his constitutional rights.

   Hamdi, however, was not decided until 2004, so it could
not have placed Yoo on clear notice of Padilla’s constitutional
rights in 2001-03 when Yoo was at the Department of Justice.
Even after Hamdi, moreover, it remains murky whether an
enemy combatant detainee may be subjected to conditions of
confinement and methods of interrogation that would be
unconstitutional if applied in the ordinary prison and criminal
settings. Although Hamdi recognized that citizens detained as
enemy combatants retain constitutional rights to due process,
the Court suggested that those rights may not be coextensive
with those enjoyed by other kinds of detainees. On the con-
trary, the Court held that the rights afforded to an enemy com-
batant detainee “may be tailored” to the circumstances, id. at
533, because “the full protections that accompany challenges
to detentions in other settings may prove unworkable and
inappropriate in the enemy-combatant setting,” id. at 535.7
  6
     In describing these standards, Hamdi made no express distinction
between “[t]he capture and detention of lawful combatants and the cap-
ture, detention, and trial of unlawful combatants.” Hamdi, 542 U.S. at 518
(emphasis added).
   7
     This statement in Hamdi referred to detainees’ procedural rights, not
their substantive rights, and we do not read the statement as either suggest-
ing or foreclosing the possibility that citizens detained as enemy comba-
tants have lesser substantive constitutional rights than other types of
detainees. Cf. Vance v. Rumsfeld, 653 F.3d 591, 610-11 (7th Cir. 2011)
(observing that Hamdi addressed a question of procedural due process
rather than substantive due process), reh’g en banc granted and opinion
vacated (Oct. 28, 2011). We do observe, however, that the Supreme Court
has in other contexts suggested the possibility that substantive rights too
may vary according to the circumstances of the detention at issue. See
Youngberg, 457 U.S. at 321-22 (“Persons who have been involuntarily
4530                        PADILLA v. YOO
   [4] In sum, the plaintiffs did not, through their reliance on
either Hamdi or cases involving ordinary prison and criminal
settings, allege violations of constitutional and statutory rights
that were clearly established in 2001-03. During that relevant
time frame, the constitutional rights of convicted prisoners
and persons subject to ordinary criminal process were, in
many respects, clearly established. But Padilla was not a con-
victed prisoner or criminal defendant; he was a suspected ter-
rorist designated an enemy combatant and confined to
military detention by order of the President. He was detained
as such because, in the opinion of the President — albeit
allegedly informed by his subordinates, including Yoo —
Padilla presented a grave danger to national security and pos-
sessed valuable intelligence information that, if communi-
cated to the United States, could have been helpful to the
United States in staving off further terrorist attacks. We
express no opinion as to whether those allegations were true,
or whether, even if true, they justified the extreme conditions
of confinement to which Padilla says he was subjected. Cf.
Rumsfeld v. Padilla, 542 U.S. 426, 465 (2004) (Stevens, J.,
dissenting) (describing “[i]ncommunicado detention for
months on end” as an “unlawful procedure[ ] to extract infor-
mation”). In light of Padilla’s status as a designated enemy
combatant, however, we cannot agree with the plaintiffs 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. Anderson,
483 U.S. at 640. Given the unique circumstances and pur-
poses of Padilla’s detention, and in light of Quirin, an official
could have had some reason to believe that Padilla’s harsh

committed are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are designed
to punish.” (emphasis added)). For our purposes it is sufficient to say that
it was not clearly established in 2002 that United States citizens detained
as enemy combatants possessed the same substantive due process rights as
other types of detainees.
                            PADILLA v. YOO                             4531
treatment fell within constitutional bounds.8 Even after
Hamdi, the degree to which citizens detained as enemy com-
batants must be afforded the constitutional protections granted
other detainees remains unsettled, because “the full protec-
tions that accompany challenges to detentions in other settings
may prove unworkable and inappropriate in the enemy-
combatant setting.” Hamdi, 542 U.S. at 535. The same is true
of Padilla’s RFRA claim. As the Fourth Circuit held, the
application of RFRA to enemy combatants in military deten-
tion was not clearly established in 2001-03. See Lebron, 670
F.3d at 556-60.

                                     B.

   The absence of a decision defining the constitutional and
statutory rights of citizens detained as enemy combatants need
not be fatal to the plaintiffs’ claims. The Supreme Court has
long held that “officials can still be on notice that their con-
  8
    Whereas convicted prisoners are detained for purposes of “retribution,
deterrence, incapacitation, and rehabilitation,” Graham v. Florida, 130
S. Ct. 2011, 2028 (2010), the President ordered Padilla detained to “pre-
vent him from aiding al Qaeda in its efforts to attack the United States,”
and as a source of “intelligence about personnel and activities of al
Qaeda[ ] that, if communicated to the U.S., would aid U.S. efforts to pre-
vent attacks by al Qaeda on the United States.” Memorandum from Presi-
dent George W. Bush to the Secretary of Defense (June 9, 2002). In the
absence of clear guidance from the courts, a reasonable official could have
had some reason to believe that these circumstances justified affording an
enemy combatant lesser constitutional and statutory protections than ordi-
nary convicted prisoners. Some courts have been sympathetic to such
rationales. See Padilla v. Hanft, 423 F.3d 386, 395 (4th Cir. 2005) (noting
that military detention might be necessary to serve a governmental interest
in restricting a detainee’s “communication with confederates so as to
ensure that the detainee does not pose a continuing threat to national
security even as he is confined”); Lebron v. Rumsfeld, 764 F. Supp. 2d
787, 805 (D.S.C. 2011) (observing that burdens on a detainee’s religious
observation might have served “the arguably compelling state interest in
obtaining control over a critical subject during his interrogation . . . [or]
the governmental interest in sustained interrogation over multiple hours to
obtain the critical information sought”).
4532                        PADILLA v. YOO
duct violates established law even in novel factual circum-
stances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); see also
United States v. Lanier, 520 U.S. 259, 271 (1997) (“There has
never been . . . a section 1983 case accusing welfare officials
of selling foster children into slavery; it does not follow that
if such a case arose, the officials would be immune from dam-
ages [or criminal] liability.” (alteration in original) (quoting
United States v. Lanier, 73 F.3d 1380, 1410 (6th Cir. 1996)
(Daughtrey, J., dissenting)) (internal quotation marks omit-
ted)).

   [5] The plaintiffs invoke this principle here. They argue
that, even if there is no specific judicial decision holding that
the Fifth Amendment’s prohibition on government conduct
that “shocks the conscience” is violated when the government
tortures a United States citizen designated as an enemy com-
batant, torture of a United States citizen is the kind of egre-
gious constitutional violation for which a decision “directly
on point” is not required. Al-Kidd, 131 S. Ct. at 2083.9 We
agree with the plaintiffs that the unconstitutionality of tortur-
ing a United States citizen was “beyond debate” by 2001. Id.10
                                              (Text continued on page 4534)

   9
     That substantive due process under the Fifth Amendment prohibits the
government from engaging in conduct that “shocks the conscience” has
long been clearly established. See Cnty. of Sacramento v. Lewis, 523 U.S.
833, 846-47 (1998) (collecting cases). What has not been clearly estab-
lished is how that standard applies to citizens detained as enemy comba-
tants.
   10
      As the State Department reported in February 2000:
       6. Torture is prohibited by law throughout the United States.
    It is categorically denounced as a matter of policy and as a tool
    of state authority. Every act constituting torture under the Con-
    vention [against Torture and Other Cruel, Inhuman or Degrading
    Treatment or Punishment] constitutes a criminal offence under
    the law of the United States. No official of the Government, fed-
    eral, state or local, civilian or military, is authorized to commit
    or to instruct anyone else to commit torture. Nor may any official
    condone or tolerate torture in any form. No exceptional circum-
    stances may be invoked as a justification of torture. United States
                             PADILLA v. YOO                             4533
    law contains no provision permitting otherwise prohibited acts of
    torture or other cruel, inhuman or degrading treatment or pun-
    ishment to be employed on grounds of exigent circumstances (for
    example, during a “state of public emergency”) or on orders from
    a superior officer or public authority, and the protective mecha-
    nisms of an independent judiciary are not subject to suspension.
    The United States is committed to the full and effective imple-
    mentation of its obligations under the Convention throughout its
    territory. . . .
       49. Torture has always been proscribed by the Eighth
    Amendment to the United States Constitution, which prohibits
    “cruel and unusual punishments”. . . . [T]he protections of the
    right to life and liberty, personal freedom and physical integrity
    found in the Fourth, Fifth and Eighth Amendments to the United
    States Constitution provide a nationwide standard of treatment
    beneath which no governmental entity may fall. The constitu-
    tional nature of this protection means that it applies to the actions
    of officials throughout the United States at all levels of govern-
    ment; all individuals enjoy protection under the Constitution,
    regardless of nationality or citizenship. . .
       112. Because the Eighth Amendment by its terms applies to
    “punishments”, courts have looked to other constitutional provi-
    sions, in particular the Fourth Amendment’s protections against
    unreasonable searches and seizures and the due process require-
    ments of the Fifth and Fourteenth Amendments, to preclude the
    abuse or ill-treatment of individuals in other custodial circum-
    stances. These constitutional protections are applicable and
    enforced at all levels of government.
Initial Report of the United States of America to the United Nations Com-
mittee Against Torture ¶¶ 6, 49, 112, U.N. Doc. CAT/C/28/Add.5 (Feb.
9, 2000) (emphasis added), available at http://www.state.gov/documents/
organization/100296.pdf (an initial report of the United States’ compliance
with the Convention Against Torture); see also Ali v. Rumsfeld, 649 F.3d
762, 781-82 (D.C. Cir. 2011) (Edwards, J., dissenting in part) (cataloguing
United States prohibitions on torture from the nineteenth century through
the present day); Arar v. Ashcroft, 585 F.3d 559, 598 (2d Cir. 2009) (en
banc) (Sack, J., dissenting) (“Although the ‘shocks the conscience’ test is
undeniably ‘vague,’ ‘[n]o one doubts that under Supreme Court precedent,
interrogation by torture’ meets that test” (alteration in original) (citations
omitted) (quoting Harbury v. Deutch, 233 F.3d 596, 602 (D.C. Cir. 2000),
4534                         PADILLA v. YOO
Yoo is entitled to qualified immunity, however, because it
was not clearly established in 2001-03 that the treatment to
which Padilla says he was subjected amounted to torture.

  [6] In 2001-03, there was general agreement that torture
meant the intentional infliction of severe pain or suffering,
whether physical or mental.11 The meaning of “severe pain or

rev’d on other grounds sub nom Christopher v. Harbury, 536 U.S. 403
(2002))); cf. Vance, 653 F.3d at 606 (“On what conceivable basis could
a U.S. public official possibly conclude that it was constitutional to torture
U.S. citizens?”), reh’g en banc granted and opinion vacated (Oct. 28,
2011).
   11
      The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, which the United States signed in
1988 and ratified in 1990, defines torture as:[A]ny act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or a third person infor-
mation or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coerc-
ing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting
in an official capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions.
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, art. 1(1), Dec. 10, 1984, S. Treaty Doc. No.
100-20, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (emphasis added). Similarly,
the federal statute criminalizing torture that occurs abroad, 18 U.S.C.
§ 2340A, defines torture as “an act committed by a person acting under the
color of law specifically intended to inflict severe physical or mental pain
or suffering (other than pain or suffering incidental to lawful sanctions)
upon another person within his custody or physical control.” Id. § 2340(1)
(emphasis added). Section 2340 further defines “severe mental pain or suf-
fering” as
    the prolonged mental harm caused by or resulting from — (A)
    the intentional infliction or threatened infliction of severe physi-
    cal pain or suffering; (B) the administration or application, or
    threatened administration or application, of mind-altering sub-
    stances or other procedures calculated to disrupt profoundly the
                            PADILLA v. YOO                            4535
suffering,” however, was less clear in 2001-03. See, e.g.,
Michael W. Lewis, A Dark Descent into Reality: Making the
Case for an Objective Definition of Torture, 67 Wash. & Lee
L. Rev. 77, 82-83 (2010); Judith Resnik, Detention, the War
on Terror, and the Federal Courts, 110 Colum. L. Rev. 579,
633-34 (2010); Sanford Levinson, In Quest of a “Common
Conscience”: Reflections on the Current Debate About Tor-
ture, 1 J. Nat’l Security L. & Pol’y 231, 231-52 (2005).

   In several influential judicial decisions in existence at the
time of Yoo’s tenure at OLC, for example, courts had
declined to define certain severe interrogation techniques as
torture:

   Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A)
(1978), is the European Court of Human Rights’ leading deci-
sion on torture. The court considered whether five interroga-
tion techniques used by the United Kingdom to interrogate
suspected members of the Irish Republican Army violated
Article 3 of the European Convention of Human Rights,
which prohibits both torture and “inhuman or degrading treat-
ment or punishment.” The five techniques at issue were wall
standing (i.e., stress positions), hooding, subjection to noise,
sleep deprivation and deprivation of food and drink. See id. at
59.12 Because the case was decided before ratification of the

    senses or the personality; (C) the threat of imminent death; or (D)
    the threat that another person will imminently be subjected to
    death, severe physical pain or suffering, or the administration or
    application of mind-altering substances or other procedures cal-
    culated to disrupt profoundly the senses or personality.
Id. § 2340(2) (emphasis added). The Torture Victim Protection Act
(TVPA), Pub. L. No. 102-256, § 3(b), 106 Stat. 73 (1991), 28 U.S.C.
§ 1350 note, which provides a civil tort remedy for victims of torture,
employs a similar definition of torture.
   12
      The court described wall-standing as a “stress position” in which
detainees were forced to stand spread-eagled against a wall with their feet
4536                         PADILLA v. YOO
Convention Against Torture, the court turned to a definition
provided by United Nations General Assembly Resolution
3452, which described torture as “an aggravated and deliber-
ate form of cruel, inhuman or degrading treatment or punish-
ment.” The court concluded that “[a]lthough the five
techniques, as applied in combination, undoubtedly amounted
to inhuman and degrading treatment,” in violation of Article
3, “they did not occasion suffering of the particular intensity
and cruelty implied by the word torture as so understood.” Id.
at 80.

   In HCJ 5100/94 Public Committee Against Torture in
Israel v. Israel 53(4) PD 817 [1999] (Isr.), reprinted in 38
I.L.M. 1471, the Israeli Supreme Court considered whether
coercive techniques used by Israeli security forces violated
international law. The techniques included hooding, violent
shaking, painful stress positions, exposure to loud music and
sleep deprivation.13 The court concluded that each of these

back away from the wall, causing all of their weight to be borne by the
fingers and toes. Hooding was the practice of keeping detainees’ heads
and faces covered by an opaque hood whenever they were not being inter-
rogated. Subjection to noise involved keeping detainees in a room in
which there was a continuous loud hissing noise. The court described
deprivation of food and drink as keeping the detainees on a “reduced diet”
during their stay at the interrogation centers (which lasted for several days
but seldom exceeded one week).
   13
      The court defined “shaking,” considered the harshest of the challenged
interrogation techniques, “as the forceful shaking of the suspect’s upper
torso, back and forth, repeatedly, in a manner which causes the neck and
head to dangle and vacillate rapidly.” Id. at 1474. Evidence was submitted
that “the shaking method is likely to cause serious brain damage, harm the
spinal cord, cause the suspect to lose consciousness, vomit and urinate
uncontrollably and suffer serious headaches.” Id. The stress positions
used, including the “Shabach” position and the “Frog Crouch,” were
alleged to cause “serious muscle pain in the arms, the neck and head-
aches.” Id. at 1475. The court also considered allegations of excessively
tight hand or leg cuffs, which allegedly “result[ ] in serious injuries to the
suspect’s hands, arms and feet.” Id. Sleep deprivation was also alleged.
                             PADILLA v. YOO                             4537
techniques was illegal, see id. at 1482-85, although the court
did not address whether they constituted torture rather than
cruel, inhuman and degrading treatment, which was also pro-
hibited by international law.

   In Price v. Socialist People’s Libyan Arab Jamahiriya, 294
F.3d 82 (D.C. Cir. 2002), the plaintiffs were two American
citizens imprisoned in Libya, allegedly for political reasons.
They alleged that they endured deplorable conditions while
incarcerated, including urine-soaked mattresses, a cramped
cell with substandard plumbing they were forced to share with
seven other inmates, a lack of medical care and inadequate
food. See id. at 86. They also alleged that they were “kicked,
clubbed and beaten” by prison guards, and “interrogated and
subjected to physical, mental and verbal abuse.” Id. The plain-
tiffs sued Libya under the Foreign Sovereign Immunities Act,
alleging torture. The court held that the plaintiffs had failed
to adequately allege torture because they did not allege suffi-
ciently severe pain or suffering, noting that “[t]he critical
issue is the degree of pain and suffering that the alleged tor-
turer intended to, and actually did, inflict upon the victim. The
more intense, lasting, or heinous the agony, the more likely it
is to be torture.” Id. at 93. Although the plaintiffs alleged that
they suffered “kicking, clubbing, and beatings,” there was “no
way to determine from the present complaint the severity of
plaintiffs’ alleged beatings — including their frequency, dura-
tion, the parts of the body at which they were aimed, and the
weapons used to carry them out.” Id.14

Applicants “complained of being deprived of sleep as a result of being tied
in the ‘Shabach’ position, being subjected to the playing of powerfully
loud music, or intense non-stop interrogations without sufficient rest
breaks. They claim that the purpose of depriving them of sleep is to cause
them to break from exhaustion.” Id. at 1476.
   14
      The court, however, remanded to allow the plaintiffs to attempt to
amend their complaint in an effort to satisfy the stringent definition of tor-
ture. See Price, 294 F.3d at 94.
4538                    PADILLA v. YOO
   In other decisions in existence at the time of Yoo’s OLC
tenure, this Circuit found torture, but the treatment at issue
was more severe than that to which Padilla was allegedly sub-
jected:

   In Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001), amended
on another ground, 355 F.3d 1140 (9th Cir. 2004), an immi-
gration case, we concluded that the petitioner was entitled to
relief under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT)
because he had been tortured in Iraq. On one occasion, the
petitioner was detained, interrogated and severely beaten for
one month. See id. at 1145. During his interrogations, he was
blindfolded and his hands were tied behind his back. See id.
On another occasion, he was blindfolded, restrained, beaten
and burned with cigarettes over an 8- to 10-day period. See id.
Noting that these actions “were specifically intended by offi-
cials to inflict severe physical pain” on the petitioner, we held,
under CAT, that he suffered torture. Id. at 1147-48.

   In Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir. 1996),
an Alien Tort Statute case, we held that two plaintiffs, Sison
and Piopongco, were tortured in the Philippines during the
regime of Ferdinand Marcos. See id. at 795. Sison had been
interrogated by members of the military, who blindfolded and
severely beat him while he was handcuffed and fettered;
threatened him with electric shock and death; denied him
sleep; and imprisoned him for seven months in a suffocatingly
hot and unlit cell, measuring 2.5 meters square, during which
time he was shackled to his cot, his handcuffs often so tight
that the slightest movement made them cut into his flesh. See
id. at 790-91. During this period, Sison felt “extreme” and
“almost undescribable” pain. Id. at 791. After his seven
months shackled to his cot, Sison spent more than eight years
in detention, approximately five of them in solitary confine-
ment and the rest in near-solitary confinement. See id. In one
round of interrogation, lasting six hours, Sison’s limbs were
shackled to a cot, a towel was placed over his nose and mouth
                           PADILLA v. YOO                           4539
and his interrogators then poured water down his nostrils so
that he felt as though he were drowning. See id. at 790. The
other plaintiff — Piopongco — was arrested, held incommu-
nicado, interrogated, subjected to mock executions and threat-
ened with death. See id. at 791.

   Here, Padilla alleged that he was subjected to prolonged
isolation; deprivation of light; exposure to prolonged periods
of light and darkness, including being “periodically subjected
to absolute light or darkness for periods in excess of twenty-
four hours”; extreme variations in temperature; sleep adjust-
ment; threats of severe physical abuse; death threats; adminis-
tration of psychotropic drugs; shackling and manacling for
hours at a time; use of “stress” positions; noxious fumes that
caused pain to eyes and nose; loud noises; withholding of any
mattress, pillow, sheet or blanket; forced grooming; suspen-
sions of showers; removal of religious items; constant surveil-
lance; incommunicado detention, including denial of all
contact with family and legal counsel for a 21-month period;
interference with religious observance; and denial of medical
care for “serious and potentially life-threatening ailments,
including chest pain and difficulty breathing, as well as for
treatment of the chronic, extreme pain caused by being forced
to endure stress positions.” Compl. ¶¶ 55-56, 64, 69-71. The
complaint also alleged, albeit in conclusory fashion, that
Padilla “suffered and continues to suffer severe mental and
physical harm as a result of the forty-four months of unlawful
military detention and interrogation.” Compl. ¶¶ 6, 76. It also
alleged that Padilla suffered “severe physical pain” and “pro-
found disruption of his senses and personality.” Compl. ¶¶ 45,
75.

   [7] We assume without deciding that Padilla’s alleged
treatment rose to the level of torture.15 That it was torture was
                                             (Text continued on page 4541)

  15
    Recent decisions may offer support for this assumption. In Ali v.
Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011), four Afghan and five Iraqi citi-
zens captured and held in Afghanistan and Iraq by the U.S. military sued
4540                          PADILLA v. YOO
former Secretary of Defense Rumsfeld and three high-ranking Army offi-
cers, alleging the plaintiffs were tortured in violation of the Due Process
Clause of the Fifth Amendment. See id. at 764-66. They alleged they were
beaten, stripped naked, hooded, exposed to dangerously high tempera-
tures, subjected to prolonged sleep deprivation, deprived of adequate food
and water, subjected to mock executions and death threats, subjected to
sensory deprivation, placed in restraints and stress positions, sexually
assaulted and denied necessary medical care. See id. at 765-66. The major-
ity did not address whether the plaintiffs’ allegations rose to the level of
torture. In a dissenting opinion, however, Judge Edwards, though observ-
ing that “[t]he definition of torture is a matter of some controversy,”
assumed without deciding “that the offenses articulated in the [plaintiffs’]
complaint constituted torture” — in part because the government did not
dispute the plaintiffs’ assertion in its brief. Id. at 785 (Edwards, J., dissent-
ing in part).
   In Vance v. Rumsfeld, which the Seventh Circuit has vacated and agreed
to rehear en banc, the plaintiffs were two United States citizens who
alleged they were detained for weeks and illegally tortured by U.S. mili-
tary personnel in Iraq in 2006. See 653 F.3d at 594. They alleged that the
lights were kept on at all times in their cells; their cells were kept intolera-
bly cold; guards would wake them if they were ever caught sleeping;
heavy metal and country music was pumped into their cells at loud vol-
umes; they were often deprived of food and water; they were repeatedly
deprived of necessary medical care; they experienced “hooding”; they
were “walled,” i.e., slammed into walls while being led blindfolded with
towels placed over their heads to interrogation sessions; they were threat-
ened with excessive force and indefinite detention; their contact with their
families was limited; one of the plaintiff’s requests for clergy visits were
denied; and they were forbidden to correspond with a lawyer or a court.
See id. at 595-97. The three-judge panel held that any reasonable official
in 2006 would have understood this treatment to amount to torture. See id.
at 610. The government effectively conceded that the allegations
amounted to torture. See id. at 607.
  In a less comparable case, Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009)
(en banc), a dual citizen of Syria and Canada challenged his extraordinary
rendition to Syria. The plaintiff alleged violations of his substantive due
process rights under the Fifth Amendment, in part based on his alleged
detention and torture in Syria. The majority rejected the plaintiff’s claim
under Bivens, and thus did not decide whether the plaintiff’s treatment in
Syria amounted to torture or otherwise violated substantive due process.
                            PADILLA v. YOO                           4541
not, however, “beyond debate” in 2001-03. There was at that
time considerable debate, both in and out of government, over
the definition of torture as applied to specific interrogation
techniques. In light of that debate, as well as the judicial deci-
sions discussed above, we cannot say that any reasonable offi-
cial in 2001-03 would have known that the specific
interrogation techniques allegedly employed against Padilla,
however appalling, necessarily amounted to torture. Thus,
although we hold that the unconstitutionality of torturing an
American citizen was beyond debate in 2001-03, it was not
clearly established at that time that the treatment Padilla
alleges he was subjected to amounted to torture.

                                    C.

   [8] For these reasons, we hold that Yoo is entitled to quali-
fied immunity on the plaintiffs’ claims.16 Because we reverse

The dissent, however, deemed the plaintiff’s treatment to be torture. The
dissent described the most serious allegations as follows:
    During his first twelve days in Syrian detention, Arar was interro-
    gated for eighteen hours per day and was physically and psycho-
    logically tortured. He was beaten on his palms, hips, and lower
    back with a two-inch-thick electric cable. His captors also used
    their fists to beat him on his stomach, his face, and the back of
    his neck. He was subjected to excruciating pain and pleaded with
    his captors to stop, but they would not. He was placed in a room
    where he could hear the screams of other detainees being tortured
    and was told that he, too, would be placed in a spine-breaking
    “chair,” hung upside down in a “tire” for beatings, and subjected
    to electric shocks. To lessen his exposure to the torture, Arar
    falsely confessed, among other things, to having trained with ter-
    rorists in Afghanistan, even though he had never been to Afghan-
    istan and had never been involved in terrorist activity.
Id. at 587 (Sack, J., dissenting).
   16
      We have discretion to decide which of the two prongs of qualified
immunity analysis to address first. See al-Kidd, 131 S. Ct. at 2080 (citing
Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Here, we consider only
the second prong.
4542                        PADILLA v. YOO
on that basis, we do not address Yoo’s alternative arguments
that the complaint does not adequately allege his personal
responsibility for Padilla’s treatment and that a Bivens remedy
is unavailable.

   Our conclusion that Yoo is entitled to qualified immunity
does not address the propriety of Yoo’s performance of his
duties at OLC otherwise. As amici point out, the complaint
alleges that Yoo “intentionally violated professional standards
reflected in OLC practice and willfully disregarded the obliga-
tions attendant on his office.” Brief of Bruce Fein, Roberts B.
Owen and Michael P. Scharf as Amici Curiae in Support of
Plaintiffs-Appellees and Affirmance 2. Amici argue that
“[s]uch conduct, if proven, would strike at the very heart of
OLC’s mission and seriously compromise the ability of the
executive to make informed, even lawful, decisions.” Id. at 2-
3. These allegations have been the subject of an internal
Department of Justice investigation of Yoo’s compliance with
professional standards and are not at issue here.17

                          III.    CONCLUSION

   Yoo is entitled to qualified immunity. The order of the dis-
trict court denying Yoo’s motion to dismiss is therefore
reversed in pertinent part.

   REVERSED.
   17
      The Department of Justice investigation produced two reports. See
Dep’t of Justice, Office of Prof’l Responsibility, Report of Investigation
into the Office of Legal Counsel’s Memoranda Concerning Issues
Relating to the Central Intelligence Agency’s Use of “Enhanced Interroga-
tion Techniques” on Suspected Terrorists 260 (July 29, 2009) (concluding
that Yoo committed “intentional professional misconduct”), available at
http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf;
David Margolis, Memorandum of Decision Regarding the Objections to
the Findings of Professional Misconduct in the Office of Professional
Responsibility’s Report 67, 68 (Jan. 5, 2010) (concluding that Yoo “exer-
cised poor judgment” but did not “knowingly provide inaccurate legal
advice”),      available      at    http://judiciary.house.gov/hearings/pdf/
DAGMargolisMemo100105.pdf.
