John Yoo Vindicated

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On Wednesday, the Ninth Circuit Court of Appeals unanimously dismissed the case against former Bush administration lawyer John Yoo, filed by convicted terrorist Jose Padilla. “We agree with the plaintiffs that the unconstitutionality of torturing a U.S. citizen was ‘beyond debate’ by 2001,” wrote Judge Raymond Fisher for the unanimous three-judge panel. “Yoo is entitled to qualified immunity, however, because it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.” Thus, Yoo cannot be held personally liable for what Padilla characterized as “gross physical and psychological abuse” he allegedly suffered during three-plus years of military detention prior to his conviction on other terror charges in 2007. “I am glad that the Ninth Circuit agrees that Padilla and other convicted terrorists shouldn’t be allowed to use our own legal system to continue fighting against the United States,” Yoo said.

Padilla was one of the first Americans to be designated an “enemy combatant” after he was initially detained at Chicago’s O’Hare Airport in 2002. The arrest was for his connection with an “unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb,” according to then-U.S. Attorney General John Ashcroft. He was held at a military brig in isolation for more than three years, and then transferred to civilian custody. In 2007, he was convicted of “conspiring to murder, kidnap and maim people overseas.” He is currently serving a 17-year prison sentence.

Padilla’s lawsuit against Yoo focused on his time in the brig. He claims he was subjected to a wide-range of harsh interrogation techniques that amounted to torture. These techniques included prolonged isolation, light deprivation, extreme variations in temperature, loud noises, the administration of psychotropic drugs, deprivation of solid food, slapping, sleep deprivation, prolonged shackling, and threats to the detainee’s family. Padilla’s suit alleged that Yoo’s “torture memos” led to the “illegal treatment” he received.

The memos to which Padilla was referring included one written in 2001 advising that the military could use “any means necessary” to hold terror suspects, and one written in 2002 to then-White House Counsel Alberto Gonzales defining torture as that which caused pain levels equivalent to “organ failure, impairment of bodily function or even death.” Yoo was also the principle author of the 2002 memo that authorized the use of “waterboarding,” which simulates drowning.

Padilla’s case had been allowed to proceed after a 2009 ruling by U.S. District Judge Jeffrey White of San Francisco, who based his decision in part on Hamdi v. Rumsfeld, a 2004 U.S. Supreme Court ruling that noted the “state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” White further contended that Yoo was the “alleged architect of the government policy” on enemy combatants, and that government lawyers could be held responsible for the “foreseeable consequences of their acts.”

The Ninth Circuit didn’t buy it, noting that the law defining torture and the treatment of enemy combatants was unsettled in the years immediately following the 9-11 attacks. “There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques,” Judge Fisher wrote. “In light of that debate…we 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.” In reversing White, the Ninth Circuit also reinforced the definition of enemy combatant. It noted that the trial court had “erred” when it concluded that Padilla and other suspected terrorists held by the military had the same rights as ordinary prison inmates.

A 1982 ruling by the Supreme Court may have been part of the mix. It established that government officials cannot be held legally responsible for violating individual rights unless those rights were clearly established at the time. A 2011 Supreme Court ruling was definitely part of the mix. In Ashcroft v. al-Kidd, the Court concluded that former U.S. Attorney General John Ashcroft could not be sued for authorizing the detention of Muslim-Americans for several weeks immediately following the 9-11 attacks. “We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate,” Justice Antonin Scalia wrote for a 5-4 majority. According to Judge Fisher, Ashcroft v. al-Kidd “foreclosed” Padilla’s argument.

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  • sononthe_beach

    American Patriots 1, hyperventilating liberal traitors 0

  • scum

    The architect of pain, "vindicated."

    • Larry

      The saviour of thousands of lives, vindicated.

  • Schlomotion

    John Yoo may be vindicated, and Jose Padilla is definitely a terrorist, but his loss of this case is a Dred Scott v. Sandford loss. This idea that we don't know at certain times that people have rights and that peasants cannot sue government officials is garbage.

  • guest

    he wasn't vindicated you idiot. the court simply took the bizarre position that he couldn't have been involved with torture because torture hadn't been adequately defined at the time. And that lack of clarity was the direct result of what he and the OLC were doing: namely, muddying the definition of torture. You can call it a smart legal strategy that paid off in terms of liability. But to call it vindication is complete nonsense, as well as the height of moral relativism. The definition of torture had been settled, but the OLC memos purposely questioned those definitions for the express purpose of covering the asses of the government torturers and those who directed them. Stalin would be very very proud (and Orwell, horrified).

    • sedoanman

      So his conviction was upheld on a technicality. The courts have a long way to go to even the score the guilty have racked up having their convictions reversed on a technicality.

      • Larry

        No, it wasn't upheld on a technicality, it was dismissed, thrown out of court, those bringing it were told there was no case to answer, stop wasting our time.

  • Ronald Johnston

    I see nothing wrong with torture against the evil barbaric terrorists who want to be a martyr and sit on the right hand of Allah with 21 virgins!!!! These people are 20 centuries away from being civilized!!!!

  • sedoanman

    If you can't get the Ninth to agree with you against a conservative, your case is doomed.

  • WilliamJamesWard

    Padilla, if they threw him into a room with Hillary Clinton,Nancy Pelosi, WassermanSchultz,
    Roseanne Barr, Rosie O'Donnell et. al., for me that would be torture, for Padilla maybe heaven,
    we all have our idea of what would be torture.

    . The idea here is to impress on would be terrorists the thinking that they are at
    some point doomed and will stay in their dark hole until judgement day. Summary execution
    of those who do not have information to squeeze out of them should be standard operational
    procedure, it should be done publically to get the idea across that traitors, terrorists and enemies
    of America have no future and nothing to look forward to but retribution, swift and final…………………….William

  • Anamah

    People must prevail.

  • RonCarnine

    When an American becomes an enemy combatant, does he still retain his American citizenship? I don't think so. Padilla is now an American so he can fill his charges and lawsuits? Again, I don't think so. He is a terrorist who hated this country and without any doubt set out to kill and maim American citizens. I don't think he has a leg to stand on.

  • Whitehunter2

    Torture is what the communists did to John McCain and hundreds of other American POWs at the Hanoi Hilton–murdering many of them and leaving most of the others maimed for life with permanent, exruciating injuries like McCain's dislocated shoulders. And the communists did it merely for sadistic recreation, not even to elicit information about planned future attacks (which in any case would have been an atrocity under the "only-name-rank-serial-number" rule. Yet not a single one of the communist war criminals–either from Vietnam or from North Korea (just ask the crew of USS Pueblo)–has ever been charged with anything.


  • Whitehunter2


    What Padilla "suffered" was far less than what any boot-camp recruit to the U.S. military undergoes–and much, much less than prescribed in the initiation rituals of most fraternities even today. Padilla is lucky he still has his arms, legs, eyes, and fingernails, not to mention a left-wing, America-hating lawyer. Or, for that matter, his life. That's way more than he planned for his intended victims.

    I remember vividly that during the Vietnam War, our home-grown traitors insisted that American POWs weren't entitled to Geneva protections because it was "an illegal war." Yet these same traitors nows insist, absurdly, that monsters like KSM and his fellow jihadists, somehow, ARE entitled to exactly these punctilious rules. It speaks volumes about all of them.