Alex Constantine - May 6, 2012
By Bob Egelko
SF Chronicle, May 3, 2012
John Yoo, the UC Berkeley law professor who advised President George W. Bush on interrogation of terror suspects, can't be sued for allegedly authorizing a prisoner's harsh treatment even if it amounted to torture, a federal appeals court ruled Wednesday.
The Ninth U.S. Circuit Court of Appeals stopped short of endorsing Yoo's conduct as a lawyer in the Justice Department, where he wrote memos approving most of the practices allegedly used against plaintiff Jose Padilla in a Navy brig - sleep deprivation, stress positions, isolation, and extremes of temperature, light and darkness.
Padilla also said his interrogators threatened to kill him, and he claimed Yoo had personally authorized his treatment.
At least some of Padilla's treatment may well constitute torture under current standards, the appeals court said. But when Yoo worked for the department in 2001-03, the three-judge panel said, courts had not yet decided that those practices were torture, or that so-called enemy combatants like Padilla had the same constitutional rights as other inmates.
Since 1982, the Supreme Court has ruled that government officials can't be held legally responsible for violating individual rights unless those rights were clearly established at the time.
"We cannot say that any reasonable official in 2001-03 would have known that the specific interrogation techniques allegedly employed against Padilla, however appalling, necessarily amounted to torture," said Judge Raymond Fisher in the 3-0 ruling.
He said the high court didn't rule until 2004 that inmates held as enemy combatants were entitled to humane treatment, and the scope of their rights is still unclear.
In January, another appeals court dismissed a similar suit by Padilla against former Defense Secretary Donald Rumsfeld and other Bush administration officials. That court said private citizens have no right to sue government officials for damages for military detention and interrogation. Padilla has appealed to the Supreme Court.
His lawyers said they were reviewing their options in Wednesday's case, but stressed that the court had decided only that Yoo was shielded from liability, and not whether he had acted legally.
"Incommunicado detention, brutal treatment and death threats do not represent American values and are universally condemned," said attorney Jonathan Freiman.
Yoo and his lawyer, Miguel Estrada, called the ruling a vindication.
"The Ninth Circuit's decision confirms that this litigation has been baseless from the outset," they said in a statement. Padilla "will need to find a new hobby for his remaining time in prison," they said.
Padilla, a U.S. citizen, was arrested in 2002 and initially accused of plotting with al Qaeda to detonate a radioactive "dirty bomb." He was held in a Navy brig without charges for nearly four years, and then was transferred to civilian custody, charged and convicted of an unrelated conspiracy to provide money and supplies to Islamic extremist groups.
An appeals court recently ruled Padilla's 17-year prison term too lenient and ordered him resentenced.
Yoo, while in the Justice Department's Office of Legal Counsel, wrote a memo saying forcible interrogation methods amounted to torture only if they caused the same level of pain as "organ failure, impairment of bodily function or even death." He said the near-drowning technique known as waterboarding was not torture.
The lawsuit focused on Padilla's time in the brig. The suit said Yoo reviewed and authorized Padilla's illegal detention and provided legal cover for his treatment.
Yoo argued that he was merely giving legal advice. But U.S. District Judge Jeffrey White, a Bush appointee, ruled in 2009 that Padilla could sue the "alleged architect of the government policy" on enemy combatants, and said government lawyers could be held responsible for the "foreseeable consequences of their acts."
The ruling can be viewed at links.sfgate.com/ZLJP.
This article appeared on page C - 1 of the San Francisco Chronicle