John Yoo, the UC Berkeley law professor who penned legal memos that provided cover for President George W. Bush's torture program, can't be sued by one of the victims of that program, a federal appeals court ruled Wednesday.
The U.S. 9th Circuit Court of Appeals said Jose Padilla, an American citizen arrested in 2002 and declared an "enemy combatant," may not hold professor John Yoo liable for "gross physical and psychological abuse" that Padilla said he suffered during more than three years of military detention, according to the Los Angeles Times.
"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.
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San Francisco Chronicle: John Yoo torture suit tossed out
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.
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Los Angeles Times: Treatment was 'clearly unconstitutional' says lawyer
Ben Wizner, who represents Padilla in another federal lawsuit against other Bush administration officials, called the ruling "quite wrong" and "disappointing."
He said the court missed an opportunity to declare "once and for all" that the methods used against Padilla were "clearly unconstitutional."
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"Even if they were to give John Yoo a free pass, they missed an opportunity to make sure that nothing like this would ever happen again," Wizner said.
The 9th Circuit's ruling said the U.S. Supreme Court did not declare until 2004 that citizens held as enemy combatants have constitutional rights.
Even now, the 9th Circuit said, "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."
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Christian Science Monitor: 'Torture memos' author can't be sued
The Ninth Circuit panel stressed that it was “beyond debate” in 2001-03 that it was unconstitutional for the government to torture an American citizen. But the court said it was not “clearly established at that time that the treatment Padilla alleges he was subjected to amounted to torture.”
The 2002 “torture memo” set broadly permissive standards giving significant leeway to interrogators. It says a subject would have to experience pain equivalent to organ failure to prove torture.
The memo also set broadly permissive standards for the infliction of mental harm.
“The development of a mental disorder such as post-traumatic stress disorder, which can last months or even years, or even chronic depression, which can last a considerable period of time if untreated, might satisfy the prolonged harm requirement” to prove torture, the memo says.
Three mental-health experts who examined Padilla have said his mental condition exceeded that standard. His detention and interrogation left him with severe mental disabilities, they say, from which he may never recover.
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