A couple weeks ago, while nobody was paying attention, the U.S. Ninth Circuit Court of Appeals reversed a lower court’s decision permitting convicted terrorist José Padilla to sue John Yoo.
Padilla, you may recall, was arrested in May of 2002. The government claimed he was planning to build and detonate a ‘dirty bomb’ in the United States. He was held in a military prison without charge or due process for three and a half years, during which time he was subjected to ‘enhanced interrogation’ techniques which included prolonged isolation, sensory deprivation, sensory overload (extreme variations in temperature, loud noises, long periods of absolute darkness or light, exposure to noxious smells), administration of psychotropic drugs, sleep deprivation, prolonged shackling, stress positions and threats to his family–all of which have long been considered either illegal or torture.
The Bush administration was eventually required to release Padilla from military custody. In 2007, he was tried and convicted in a civilian criminal court. He was sentenced to serve 17 years for conspiracy to kill or maim, and for providing support to a terrorist organization. The accusation about the ‘dirty bomb’ for which he was originally arrested? No charges involving such a bomb were ever filed.
After his conviction, Padilla sued John Yoo, asking for US$1.00 in damages. That’s right, one dollar. Padilla wasn’t looking for actual justice; he just wanted to make a point.
Yoo, of course, is the former member of the Office of Legal Counsel (the office tasked with assisting the U.S. Attorney General in giving legal advice to the President) who wrote the infamous ‘torture memos’ which stated President Bush had the legal authority to order ‘enhanced interrogation techniques’ to be used on suspected terrorists. A subsequent review of Yoo’s memoranda by the Justice Department’s Office of Professional Responsibility stated Yoo had committed ‘intentional professional misconduct’ when he claimed the president could authorize torture; they recommended he be referred to the his state Bar Association for possible disciplinary action (i.e., disbarred). That conclusion was overruled by a more senior Bush administration lawyer.
And now Padilla’s suit against Yoo has also been dismissed. Why? Because according to the Ninth Circuit Court, “There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques.” In other words, although there was universal agreement in the international legal community about whether those practices constituted torture, disagreement about the definition of torture in the Bush administration means Yoo can’t be held accountable. The court stated they “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.”
By the way, those ‘torture memos’ are also referred to as the ‘Bybee memos’ because although Yoo wrote them, the memoranda were signed by his superior, Jay Bybee. Bybee left the Office of Legal Counsel in 2003 to become a judge on the Ninth Circuit Court of Appeals–the court that just dismissed the suit against John Yoo. While Bybee wasn’t on the panel of judges who heard the case, one can’t help but note the irony.
Yoo’s response to the dismissal of the suit? “For several years, Padilla and his attorneys have been harassing the government officials he believes to have been responsible for his detention and ultimately conviction as a terrorist. He has now lost before two separate courts of appeals, and will need to find a new hobby for his remaining time in prison.”
That’s right…John Yoo is finally free of the years of cruel harassment he’s had to endure at the hands of José Padilla.