Yoo Safe from Liability for ‘Torture Memos’

John Yoo

John Yoo, the former Bush Administration Justice Department official and author of the so-called torture memo is immune for a lawsuit by Jose Padilla, a U.S. citizen detained as an enemy combatant and allegedly subjected to torture.

The 9th Circuit Court of Appeals said today that while it assumes Padilla’s treatment rose to the level of torture and even thought the unconstitutionality of torturing US citizens was “beyond debate by 2001,” it was not clear that American citizens held in military detention as enemy combatants possessed rights against the treatment Padilla received.

The appeals court says Yoo was entitled to qualified immunity on Padilla’s claims and reversed the decision by U.S. District Judge Jeffrey S. White in 2010 that had allowed the lawsuit to proceed.

Padilla was detained by authorities after the Sept. 11, 2001 attacks on the World Trade Center as an “enemy combatant.”  He was arrested at Chicago’s O’Hare airport in 2002 and charged with conspiring with al-Qaida to detonate a radioactive “dirty bomb” in the U.S.  He spent more than three years in a Navy brig before he was charged in federal court.   His lawsuit alleges he was subjected to physical and psychological abuse during that time on the orders of high-ranking government officials like Yoo.

Treatment allegedly included extreme variations in temperature, being deprived of light, placed in isolation, subjected to loud noises, given psychotropic drugs and other treatment allegedly authorized by Yoo.

“Given the unique circumstances and purposes of Padilla’s detention… an official could have had some reason to believe that Padilla’s harsh treatment fell within constitutional bounds,” wrote Judge Raymond Fisher for the court.  He was joined by Judges Randy Smith and visiting Judge Rebecca Pallmeyer of Illinois.

The panel also rejected Padilla’s claim that the treatment was so severe that it should put officials on notice of the potential unconstitutionality of their actions.

“Yoo is entitled to qualified immunity, however, because it was not clearly established in 2001-2003 that the treatment to which Padilla says he was subjected amounted to torture, Fisher wrote.

At the time Yoo was an assistant attorney general in the Office of Legal Counsel.  After leaving the Bush Administration he became a tenured professor of law at UC Berkeley’s Boalt Hall Law School.

Yoo’s memo advised the CIA and Dept. of Defense and the President that the use of mental and physical torment, including waterboarding, sleep deprivation and stress positions, widely regarded as torture, might be legally permitted during a war on torture.

The memo was sometimes called the Bybee memo because it was signed by Assistant Attorney General Jay Bybee, now a judge on the 9th Circuit.

The memos were widely considered as critical in laying out the legal justification for the Bush administration’s policy in the war on terror.

The memos were publicly released in 2008.

They were in force at the time the Abu Ghraib detainees were subjected to cruel treatment.

Case:  Padilla v. Yoo,  No. 09-16478


One comment

  1. Can we call them “Extra judicial citizens” please. They can be held forever without trial and conviction. They may never have been an enemy or a combatant. They deserve the same consideration as persons of interest.


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