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.