gavel.jpgA federal appeals court in San Francisco today grappled with whether to allow a former military prisoner to sue a University of California law professor for writing memos that allegedly led to his torture.

John Yoo, a professor at UC Berkeley, is asking the 9th U.S. Circuit Court of Appeals to dismiss a lawsuit filed in federal court in San Francisco by former military prisoner Jose Padilla.

Yoo was not present at the hearing before a three-judge panel of the appeals court. The panel took the case under consideration after hearing nearly an hour of arguments and will issue a decision later.

Yoo worked in the Office of Legal Counsel in the Bush administration from 2001 to 2003 and helped to write legal memos on the treatment of people classified as enemy combatants.

Padilla, 39, an American citizen later convicted of aiding overseas terrorism, claims those memos led to brutal treatment amounting to torture while Padilla was held as an enemy combatant in a Navy brig in South Carolina from 2002 to 2005.

Padilla was originally arrested on suspicion of participating in a radioactive “dirty bomb” plot, was classified by President Bush as an enemy combatant and was placed in the brig.

He was never charged in the bomb plot, but was later indicted in 2005 on three counts of aiding overseas terrorism, transferred to civilian custody and convicted in a federal court in Miami in 2007.

His lawyer, Jonathan Freiman, referring to Padilla’s treatment in the brig, told the court, “We are talking about shackling in painful stress positions, sensory deprivation and being held incommunicado.

“It is clearly established that this sort of brutal mistreatment violates the Constitution,” Freiman argued.

Yoo’s lawyer, Miguel Estrada, argued that Yoo was protected from being sued because he was working as a public official and because he was not personally responsible for the conditions of Padilla’s confinement.

Judge Raymond Fisher said the case was a difficult one with strong arguments on both sides, but said, “There is a fundamental question of accountability.”

Fisher, citing a 2004 U.S. Supreme Court ruling, said, “The government doesn’t have a blank check and that’s what we’re wrestling with.”

Another judge on the panel, Pamela Rymer, said the case was a “very murky and arguably untested area of constitutional law” and appeared to favor Yoo’s appeal.

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