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John Yoo Vindicated

Posted By Arnold Ahlert On May 4, 2012 @ 12:50 am In Daily Mailer,FrontPage | 14 Comments

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.

Padilla’s attorney Jonathan Freiman was incensed. “Incommunicado detention, brutal treatment and death threats do not represent American values and are universally condemned,” he said. “Hopefully no one else will face the horror that Mr. Padilla and his family have faced. The law should guarantee that, and the Ninth Circuit erred in concluding that Mr. Yoo’s actions were not ‘beyond debate.’” Freiman also said he’s deciding whether to pursue further appeals, including a possible U.S. Supreme Court review.

It would be an uphill battle at best. The Ninth Circuit is arguably the most liberal Appeals Court in the nation, and of the three Justices who ruled here two of them, Judges Rebecca R. Pallmeyer and Fisher, were appointed by Democrat president Bill Clinton. The third Judge, N. Randy Smith, was appointed by George W. Bush. Furthermore, this was the second lawsuit filed by Padilla to no avail against a Bush administration official. In January, the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals threw out a lawsuit filed against former Defense Secretary Donald Rumsfeld, similarly noting that private citizens have no right to sue government officials for damages resulting from military detention and interrogation.

Yoo and his lawyer, Miguel Estrada, characterized this latest ruling as a vindication. “The 9th Circuit’s decision confirms that this litigation has been baseless from the outset,” said Yoo, now a law professor at the University of California, Berkeley. “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 prison time may be extended. Last September, the United States Court of Appeals for the 11th Circuit in Atlanta ruled that Padilla’s current sentence is “substantively unreasonable,” further noting that it was “too great a departure” from federal sentencing guidelines for terrorists. “Padilla poses a heightened risk of future dangerousness due to his Al Qaeda training,” the court said. “He is far more sophisticated than an individual convicted of an ordinary street crime.”

Whether this latest ruling by the Ninth Circuit Court of Appeals represents the death knell in the seemingly endless progressive attempts to find some Bush administration official guilty of “torture” remains to be seen. One thing is certain: even one of the most liberal courts in the nation takes a dim view of the attempt to define torture as such after the fact. “In 2001-03, there was general agreement that torture meant the intentional infliction of severe pain or suffering, whether physical or mental,” Fisher wrote. “The meaning of ‘severe pain or suffering,’ however, was less clear in 2001-03.”

What was clear, especially in the days and months immediately following 9-11, was that the United States faced an existential threat of unknown scope and capability. One in which the initial domestic attack of what might have been a series of domestic attacks inflicted the greatest number of casualties in the nation’s history. And not in a remote location like Pearl Harbor, but in New York City and Washington, D.C. The tallest building in the nation was vaporized, the nerve center of our military capacity was damaged, and if not for the heroism of the passengers on United Airlines Flight 93, perhaps the White House or U.S. Capitol Building may have also been damaged or destroyed.

People who assail government officials tasked with making critical decisions within such critical situations have the luxury of 20/20 hindsight their intended targets did not. It is worth reminding such people that some of those decisions have likely given them that luxury, in that nothing resembling 9-11 has since occurred. When John Yoo made his recommendations he was tasked with finding what then appeared to be a nearly impossible balance between constitutional rights and national survival. His detractors, whether they know it or not, are criticizing him for “erring” on the side of national survival. That says far more about them than it does about a man whose only “crime” was protecting his fellow Americans.

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