Published on
The San Francisco Chronicle

Judge: Ex-Bush Lawyer Can be Sued Over Torture

Bob Egelko

A prisoner who says he was tortured while
being held for nearly four years as a suspected terrorist can sue
former Bush administration lawyer John Yoo for coming up with the legal
theories that justified his alleged treatment, a federal judge in San
Francisco ruled Friday.

U.S. District Judge Jeffrey White's decision marks the first time a
government lawyer has been held potentially responsible for the abuse
of detainees.

"Like any other government official, government lawyers are
responsible for the foreseeable consequences of their conduct," White
said in refusing to dismiss Jose Padilla's lawsuit against Yoo.

If Padilla, now serving a 17-year prison sentence on terrorism
charges, can prove his allegations, he can show that Yoo "set in motion
a series of events that resulted in the deprivation of Padilla's
constitutional rights," White said.

White, an appointee of former President George W. Bush, noted that
Padilla's lawsuit accuses Yoo of helping to design administration
policy on detention and torture, and then crafting legal opinions to
justify it - stepping outside the usual role of a lawyer.

Yoo, a UC Berkeley law professor, was an attorney in the Justice
Department's Office of Legal Counsel from 2001 to 2003 and wrote a
series of memos on interrogation, detention and presidential powers.

The best-known memo, written to then-White House Counsel Alberto
Gonzales in 2002, said rough treatment of captives amounted to torture
only if it caused the same level of pain as "organ failure, impairment
of bodily function or even death." The memo also said the president may
have the constitutional power to authorize torture of enemy combatants.

'Any means necessary'

A 2001 Yoo memo, made public by the Obama administration, said U.S.
military forces could use "any means necessary" to seize and hold
terror suspects in the United States.

Yoo could not be reached at his Berkeley office Friday. A spokesman
for the Justice Department, which is representing him and has argued
for dismissal of the suit, was unavailable for comment.


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Padilla's lawyers issued a statement saying they are "pleased that
our client will get his day in court and the right to challenge the
unconstitutional conduct to which he was subjected."

Unique ruling

John Eastman, law school dean at Chapman University in Orange
County, where Yoo taught for the past year, said the ruling is unique -
the first to hold any administration official potentially liable for
alleged mistreatment of terrorist suspects.

Eastman predicted that the Justice Department will file an immediate
appeal, going to the Supreme Court if necessary. Padilla, a U.S.
citizen, was arrested in Chicago in 2002 and accused by the Bush
administration of plotting with al Qaeda to detonate a radioactive
"dirty bomb."

Declared an enemy combatant, Padilla was held in a Navy brig for
three years and eight months and was denied all contact with the
outside world for the first half of that period, his suit said. He was
then taken out of the brig and charged with taking part in an unrelated
conspiracy to provide money and supplies to Islamic extremist groups.
He was convicted and has appealed.

His suit against Yoo covers his time in the brig. He says he was
detained illegally, held for lengthy periods in darkness and blinding
light, subjected to temperature extremes and sleep deprivation,
confined in painful stress positions, and threatened with death to
himself, harm to his family and transfer to a nation where he would be

Claims of mistreatment

The suit said Yoo - who has acknowledged being a member of an
administration planning group known as the "war council" - personally
reviewed and approved Padilla's detention in the brig and provided the
legal cover for his treatment.

At a hearing in March, Justice Department lawyer Mary Mason told
White that courts had no power to scrutinize high-level government
decision-making, especially in wartime.

But White said Friday that Padilla had a right to sue "the alleged
architect of the government policy" on enemy combatants. He said an
examination of Yoo's publicly disclosed writings would not damage
national security, and an inquiry into "allegations of unconstitutional
treatment of an American citizen on American soil" would not affect
foreign relations.

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