Court dismisses lawsuit against torture memo author John Yoo

Constitutional Law, International Law , , , , ,

The United States Court of Appeals for the Ninth Circuit today dismissed a lawsuit by Jose Padilla against John Yoo, the lawyer who penned the “torture memos” during the George W. Bush presidency.

The torture memos were memoranda of law which concluded that torture only encompassed acts that led to “death, organ failure, or serious impairment of body functions.”

Under this definition, things like water-boarding –  widely considered to be a type of torture – would be permissible so long as it did not lead to death, organ failure, or serious impairment of body functions.

The plaintiff bringing suit, Jose Padilla, was an American citizen detained in May 2002 under the authority of President George W. Bush and declared an “enemy combatant.”

Padilla was then held in a military brig from June 2002 until January 2006, when he was transferred to a federal detention center to stand trial for unrelated charges of conspiring to commit murder overseas. A jury found Padilla guilty of those charges in August 2007.

In January 2008, Padilla and his mother brought suit in federal court against John Yoo. They alleged that while in custody, Padilla was subjected to alleged abuses that mirrored those committed at Guantanamo Bay, including extreme isolation; interrogation under threat of torture, deportation and even death; prolonged sleep adjustment and sensory deprivation; exposure to extreme temperatures and noxious odors; denial of access to necessary medical and psychiatric care; substantial interference with his ability to practice his religion; and incommunicado detention for almost two years, without access to family, counsel or the court.

The lawsuit asked the court to declare that Padilla’s treatment violated the Constitution; and nominal damages of 1 dollar.

The federal trial court had permitted the lawsuit to proceed. Yoo appealed to the Ninth Circuit.

In reviewing the case, the Ninth Circuit wrote (without deciding) that the treatment against Padilla amounted to torture. But in the court’s view, the critical question was whether the treatment against Padilla was considered torture in 2001-2003.

The distinction was important to the Ninth Circuit, because under civil rights law, a government official can only be held liable for activities they know to be wrong at the time they commit them.

The Ninth Circuit concluded that there was no consensus in 2001-2003 about what qualified as torture, but rather “considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques.”

Because there was a lack of clarity at the time as to what counted as torture, Yoo could not be sued under civil rights law for the positions advocated in the torture memos.

The irony, of course, is that it was Yoo, through the torture memos, who was the main force generating the “considerable debate” as to what counted as torture. Had Yoo not been so strenuous (or successful) in his advocacy for torture, he may have been found liable under civil rights law.

One can’t help but be reminded of the “Big Lie” – if you’re going to lie, you need to make up lies that are so colossal, so far-fetched, that no reasonable person would think they could be fabricated. Who knew that it was permissible for the President to authorize torture!

Yoo was not at risk of any real liability here (other than the nominal 1 dollar he stood to lose). What Padilla really wanted was just a statement by a court, somewhere, that the treatment he received for over four years was wrong, and that someone should be held accountable.

Common sense easily identifies the torture memos as a giant step backwards for both civilized human conduct and the progressive force of the rule of law. And while common sense is a litigator’s main weapon in arguing to a jury, it can be painfully ineffective as precedent before a panel of judges.

John Yoo has been amazingly capable in avoiding any type of sanction for his advocacy of torture during the Bush years. On July 29, 2009, the Justice Department’s Office of Professional Responsibility concluded that John Yoo “knowingly failed to provide a thorough, objective and candid interpretation of the law . . . Yoo’s legal analyses justified acts of outright torture under certain circumstances.” Accordingly, Yoo committed “intentional professional misconduct.” (p. 251.) The memo indicated its intention to refer Yoo to state bar disciplinary procedures for further action.

In 2010, the Office of the Attorney General (through Deputy Attorney General David Margolis) countermanded these findings and belayed Yoo’s referral for disciplinary action. While Yoo’s errors were “more than minor” and professional misconduct a “close question,” Margolis concluded that “Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power.” While the professional bars of District of Columbia or Pennsylvania were free to take up the matter themselves, Margolis concluded that the Department of Justice would not make a referral.

Where is John Yoo today? John Yoo is a professor at Berkeley Law.

Is war against the law?

International Law , , , , , ,

Is war against the law?

On its face, the question seems almost preposterous.

The United States has been in at least two wars in the last 11 years, and several other military actions.

But the answer under international law is surprising.

A good argument could be made that war — or at least aggressive, unjustified war — is actually illegal.

Of particular relevance is an obscure treaty from the 1920s known as the Kellogg-Briand Pact.

The Kellogg-Briand Pact, also known as the “General Treaty for the Renunciation of War,” was an international treaty signed and ratified by almost every major nation, including the United States.

The terms of the treaty are plain. Article I of the treaty obligates every contracting party to renounce war as an instrument of national policy:


The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

Article II of the treaty obligates all parties to settle their disputes by “pacific means”:


The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

As of January 1, 2011, the United States still lists the Kellogg-Briand pact as a “treaty in force.” Under the United States Constitution, international treaties are the “supreme law of the land.” (Art. 6 cl. 2.)

The Kellogg-Briand Pact has been modified slightly by the United Nations Charter, which permits countries to use force in self-defense and where otherwise authorized by the United Nations Security Council.

Nonetheless, under theories of international law, signatories of the Kellogg-Briand pact – including the United States – risk liability should they go to war for improper reasons.

Indeed, the Nazi war crimes tribunal at Nuremberg described aggressive war as “the supreme international crime” under international law. Nazi leaders like Hermann Goering were sentenced to death for planning, initiating and waging wars of aggression and other crimes against peace.

Is it legal to mine the moon?

International Law , , ,

It was only a matter of time: with resources on Earth mostly claimed, and with technological costs constantly on the decline, private entrepreneurs are looking to harvest resources in outer space (here is just one example).

But is private enterprise legal outside of Earth’s orbit?  Can companies engage in the buying and selling of outer space resources?

Currently, the answer is probably no.

The law of outer space is governed by a series of treaties, the most important (and oldest) being the 1967 Outer Space Treaty.

Article I of the Outer Space Treaty declares outer space to be the “province of mankind”.

Article II declares, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

Article IX requires countries to conduct their exploration of outer space (including the Moon) “so as to avoid their harmful contamination”.

Under the language of this treaty, it would be difficult to argue that a private company had authority to conduct the same type of resource exploitation that gets done here on Earth.

“Province of mankind” and rejection of “national appropriation” suggests an outer space commons; and avoiding “harmful contamination” suggests a prohibition on the types of practices that led to the Gulf Oil Spill and the Fukushima Crisis.

Ninety-eight countries, including the United States, have ratified the Outer Space Treaty.  Under international law, ratification serves as a promise to other countries that the terms of the treaty will be honored.  And under national law, treaties are the “Supreme Law of the land.”

A much stronger treaty, the 1979 “Moon Treaty,” explicitly prohibits private property on the Moon.

Article 11 declares that the Moon and its natural resources are “the common heritage of mankind,” and that no part of the surface or subsurface of the moon shall “become the property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.”  The treaty requires an international regime for any exploitation of resources.

The Moon Treaty, however, has not been ratified by any Moon-faring nation, and likely lacks weight in international law.

The thing about any treaty, though, is that it is only as good as the promise to honor it.

Five hundred years ago, after Columbus landed in the West Indies, the Spanish didn’t think twice about sending more people over to see what they could find and conquer.

To avoid disputes, they signed the Treaty of Tordesillas and split up the world with the Portuguese, who went East instead.

The Treaty of Tordesillas has little weight today.

Should the US (or Russia, or China, or India) discover some dynamite resource on the Moon, international politics will have a much greater influence on how resources get treated then current legal language.

Today, there are a variety of countries with the technology and military might to challenge US space dominance.

In such a world, sharing may be the preferred outcome than conflict.

And of course, there is always the idea of leaving outer space alone until countries can figure out how to clean up some of the giant messes here on Earth.

Pushing the limits of technology can create grave problems, as people in the Gulf and Japan are realizing.

And technological feasibility doesn’t automatically make something a good idea.