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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.

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Boycotted for backing Prop. 8? Too bad.

I’ve had a slew of e-mails and phone calls in the past few days complaining that I, or my paper, or the mass media overall have failed to adequately report the “terror campaign” against supporters of Proposition 8.

I’ve seen plenty of media stories about protests both peaceful and illegal, and based on the information I’ve got, I can say that most have been peaceful. There are some thugs out there who are using the high emotion and constitutional battle over same-sex marriage to excuse criminal behavior, and that’s unequivocally wrong, but the vast majority of people who’ve taken to the streets and the Internet since Nov. 4’s vote have done so legally and peacefully.

The Yes on 8 camp put out a release Friday complaining of “outrageous activities” such as:

  • In Sacramento, a musical theater director was forced to resign after he was blacklisted for contributing $1000 to the initiative;
  • A Mexican restaurant in Los Angeles has been boycotted after a relative of the owner donated to the coalition;
  • Numerous churches have had their property defaced;
  • And an unknown white powder was mailed to several LDS temples and the National Headquarters of the Knights of Columbus, a Catholic organization that supported the campaign.
  • As to the latter two: Anyone committing acts of vandalism, violence or terrorism should be hunted down and prosecuted to the full extent of the law, no question.

    As to the former two: Tough cookies.

    The Mormon Church and all those who supported Prop. 8 expressed their convictions and participated part in the political process, true enough, but that doesn’t mean others can’t hold them accountable. They chose to involve themselves in a question of other people’s civil rights. Standing by their convictions means accepting the consequences; in this case, the consequence is that those who disagree may choose not to associate with them, and to encourage others to do the same. They can’t jump into the public discourse and then claim some special protection from criticism.

    It takes a lot of nerve for opponents of same-sex marriage to whine about boycotts and blacklisting, after all the boycotts and blacklists endured over the years by gays and lesbians and those who’ve stood up for their rights. Given how gays and lesbians long have been ostracized simply for who they are, it’s amazing to see those same ostracizers complain now about being ostracized themselves for their beliefs.