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UC Berkeley’s John Yoo Torture Suit Tossed Out

Alex Constantine - May 6, 2012

By Bob Egelko

SF Chronicle, May 3, 2012

mn Interrogation 0501225619 part61 300x208 - UC Berkeley's John Yoo Torture Suit Tossed OutJohn Yoo, a law professor at the University of California at Berkeley, testifies  on Capitol Hill in Washington in 2008

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.

Suits prohibited

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.

'Baseless lawsuit'

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


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