UC Berkeley law professor John Yoo cannot be sued by a convicted terrorist for helping to craft the Bush administration's torture and detention policies in the aftermath of the Sept. 11 attacks, a federal appeals court ruled Wednesday.
In a unanimous three-judge decision, the 9th U.S. Circuit Court of Appeals barred terrorist Jose Padilla's lawsuit against Yoo that claimed the law professor should be held responsible for his torture while held in military detention.
The decision overturned San Francisco U.S. District Judge Jeffrey White, who had allowed the case to proceed.
The 9th Circuit found that Padilla was not entitled to the same constitutional protections as an ordinary prisoner at the time of his confinement because he was a "suspected terrorist designated an enemy combatant." Padilla, a U.S. citizen serving a 17-year prison sentence on terrorism-related charges, alleged he suffered "gross physical and psychological abuse" during his three-and-a-half years in a military brig.
But the appeals court concluded that it was "not clearly established in 2001-2003" that Padilla's alleged mistreatment amounted to torture, given his status as a terrorism suspect.
"Padilla was not a convicted prisoner or criminal defendant," 9th Circuit Judge Raymond Fisher wrote. "He was a suspected terrorist ... and confined to military detention by order of the president.
"We cannot agree with (Padilla) that he was just another detainee,"
Padilla's lawsuit stems from the release several years ago of 2001 and 2002 memos drafted by Yoo that advised the military it could use "any means necessary" to detain and interrogate terrorism suspects.
Yoo's memos to top White House officials, written while he was a deputy assistant attorney general, suggested that the military had few limits on its use of interrogation techniques such as waterboarding on terrorism suspects. Justice Department lawyers have argued that a government official such as Yoo should be immune to lawsuits over wartime decisions.
A Virginia-based federal appeals court previously dismissed another lawsuit alleging torture Padilla filed against former Bush administration officials, including former Defense Secretary Donald Rumsfeld. Padilla's lawyers recently appealed that ruling to the U.S. Supreme Court.
Yoo said the 9th Circuit's ruling "confirms that this litigation has been baseless from the outset."
"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," Yoo said in an email interview. "He has now lost before two separate courts of appeals, and will need to find a new hobby for his remaining time in prison."
Jonathan Freiman, Padilla's lawyer, said he is reviewing his options, which include asking the 9th Circuit to rehear the Yoo case with an 11-judge panel or appealing to the U.S. Supreme Court. But Freiman expressed disappointment in the decision, saying the 9th Circuit "erred."
"Incommunicado detention, brutal treatment and death threats do not represent American values and are universally condemned," he said. "The law should guarantee that."
Howard Mintz covers legal affairs. Contact him at 408-286-0236.