A law professor at the University of California at Berkeley has asked a federal appeals court in San Francisco to dismiss a lawsuit filed against him by a former military prisoner.
The prisoner, Jose Padilla, claims that legal memos written by professor John Yoo while he served in the Bush administration Justice Department led to harsh treatment of Padilla, amounting to torture, while he was held in a military brig for more than three years.
Yoo worked for the Justice Department from 2001 to 2003 and helped to write a series of memos justifying the use of extreme interrogation techniques on prisoners classified as enemy combatants.
He is now appealing a ruling in which U.S. District Judge Jeffrey White in San Francisco refused in June to dismiss Padilla’s lawsuit.
In a brief filed with the 9th U.S. Circuit Court of Appeals on Monday, Yoo argues that his advice to the president is protected by the president’s constitutional power to conduct wars.
Yoo’s lawyers wrote, “The legal advice at issue concerned issues of national security and foreign policy of the utmost sensitivity and importance.”
“Subjecting that advice to judicial second-guessing would create tremendous practical difficulties and would imperil the president’s ability to obtain candid legal counsel when circumstances require it most,” they wrote.
Yoo also argued in the brief that he was not personally responsible for any alleged violations of Padilla’s rights.
In the ruling Yoo is now appealing, White said that Padilla is entitled under previous court doctrines to argue that Yoo “set in motion” the alleged violations.
White wrote, “The court finds that Padilla has alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”
The judge also wrote in the June 12 ruling, “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.”
Lawyers for Padilla and his mother, Estela Lebron, who is also a plaintiff, have until Dec. 9 to file a reply. The appeals court has not yet set a date for hearing arguments on the appeal.
Padilla, an American citizen, was arrested in Chicago in 2002 on suspicion of participating in a radioactive “dirty bomb” plot. He was declared an enemy combatant and held without charges in solitary confinement in a Navy brig in South Carolina for three and a half years.
His lawsuit claims he was subjected to abuse including extreme sleep and sensory deprivation, exposure to extreme temperatures, being forced to sit and stand in painful stress positions, prolonged shackling, and threats of being cut with a knife or killed.
Padilla was later indicted on other charges, transferred to a federal prison and convicted of supporting overseas jihadism. He was sentenced to 17 years in prison and is now appealing his conviction.
Padilla’s lawsuit seeks $1 in financial compensation and a court declaration that his alleged mistreatment was illegal and unconstitutional.
One memo Yoo wrote in 2002 said that physical pain inflicted on prisoners did not amount to torture unless it was equivalent to the “pain accompanying serious bodily injury, such organ failure, impairment of bodily function or even death.”
The memo was withdrawn by the Justice Department in 2004.