John Yoo asks that torture lawsuit be dismissed

University of California, Berkeley Boalt Hall Law School Professor John Yoo – widely recognized as an architect of Bush Administration policies on torture and detainee rights – has filed a brief asking the 9th U.S. Circuit Court of Appeals to toss a lawsuit filed by a former prisoner.

American citizen Jose Padilla claims Yoo, an attorney in the Justice Department’s Office of Legal Counsel from 2001 through 2003, provided the legal framework for the harsh treatment he received while held as a military prisoner for several years.

Padilla was arrested in 2002; authorities said he’d been involved in a plot to detonate a radioactive “dirty bomb,” and held him as an “enemy combatant” in solitary confinement in a military brig in South Carolina, where he claims he was illegally mistreated. Though authorities eventually dropped the dirty-bomb claims and transferred him to civilian courts, Padilla was convicted in 2007 of conspiracy and providing material aid to terrorists; sentenced last year to 17 years and four months in federal prison, he’s now appealing that conviction while he also sues Yoo.

Yoo’s lawyers moved to dismiss the case, saying that Padilla’s claims would force the courts to create a new legal right against government lawyers for legal advice given to the president, and that doing so “would not only constitute an unprecedented intrusion into the President’s authority in the areas of war-making, national security and foreign policy, it could jeopardize the ability of the President and other Executive Branch officials to obtain candid legal advice on constitutional matters of utmost national importance and sensitivity.”

But U.S. District Judge Jeffrey White of San Francisco in June refused to dismiss the case, and Yoo has appealed that ruling; he filed his opening brief late yesterday.

In it, Miguel Estrada, Yoo’s attorney, claims White overstepped his authority by creating “an implied constitutional damages remedy against Yoo for legal advice he allegedly gave to the President on matters of national security and foreign policy,” and that Yoo is entitled to qualified immunity – a protection for public officials who perform their official duties reasonably – because he wasn’t personally responsible for Padilla’s detention and treatment.

“Moreover, Padilla does not allege the violation of any clearly established rights. The law governing enemy combatants was and remains murky. To the extent enemy combatants possess any of the rights Padilla invokes—and, in most cases, it is clear they do not—those rights were not clearly established when Yoo worked in OLC,” Estrada wrote.

“This case also threatens to disrupt the political branches’ constitutional role
in war-making and foreign policy,” he wrote later in the brief. “If Executive Branch lawyers are threatened with personal liability should their legal analysis turn out to be incorrect, they will be reluctant to provide candid guidance on politically controversial issues.”

Padilla and his mother and co-plaintiff, Estella Lebron, must file an answering brief by Dec. 9, and Yoo has the option to file a reply within two weeks after that. The 9th Circuit appeals court has not yet set any oral argument date for this case.

Yoo has been the target of repeated protests and classroom disruptions at the Cal campus; the next protest is scheduled for Nov. 30.

Josh Richman

Josh Richman covers state and national politics for the Bay Area News Group. A New York City native, he earned a bachelor’s degree in journalism from the University of Missouri and reported for the Express-Times of Easton, Pa. for five years before coming to the Oakland Tribune and ANG Newspapers in 1997. He is a frequent guest on KQED Channel 9’s “This Week in Northern California;” a proud father; an Eagle Scout; a somewhat skilled player of low-stakes poker; a rather good cook; a firm believer in the use of semicolons; and an unabashed political junkie who will never, EVER seek elected office.

  • RR, Uninvited Columnist

    Citizen Padilla, peace and blessings be upon him, has the wholehearted support of al-Berkeley, the Taliban’s honorary province beyond the seas. How fitting!

  • Let me see if I have the logic right here:
    The government has a lawyer that is directed to tell them what they want to hear and then somehow it is the lawyer’s fault for what happens?

  • Louisea Villacort

    Mr. Yoo can file all the briefs he wants to have that law suit tossed, uhhhhhh, but I don’t think that mother & son duet are going to back off, EVER. They’re going to keep on filing & filing law suits against him over and over again. He’ll wish he could DEPORT them both.

  • el

    astonishing that millions were given to hollywood, breaks to big business, and raising education costs when california is in the low rankings of schools across the u.s. then, to make matters worse to have the gaul to take care away from seniors and disabled people. the very people that need services the most are not going to get it so the state can clear their deficit. surely there is some other to get the money without taking out of the disabled and elderly. why not take it from anywhere else! why not tax somebody or something – like gas or cigarettes or liquor, or…, or take the money from those whose needs are cared for and have a surplus – like the wealthy – like hollywood for example, instead of taking money away from people whose lives depend on these services.
    what about corporations and big business – how much are they contributing to the deficit. it is shocking to me that nothing is said about the people this is going to affect in the media. disabled and elderly people are still worthwhile members of this society or have they become disposable?

    i just had to respond to your article in the newspaper on this issue about the judge who is trying to stop this from happening. i hope at the very least they can get a stay to last until he finally gets out of office.


    el davidson