Obama lawyers argue to drop Yoo torture suit

By Bob Egelko |

President Obama’s Justice Department defended former Bush administration lawyer John Yoo in a San Francisco federal court Friday, arguing that a prisoner formerly held as an enemy combatant had no right to sue Yoo for writing legal memos that allegedly led to his detention and torture.

“We’re not saying we condone torture,” department attorney Mary Mason said at a hearing on the government’s request to dismiss a lawsuit filed by Jose Padilla. But any recourse against a government lawyer “is for the executive to decide, in the first instance, and for Congress to decide,” not the courts, she said.

“You’re not saying that if high public officials commit clearly illegal acts, a citizen subject to those acts has no remedy in this court?” asked U.S. District Judge Jeffrey White.

Not unless Congress has expressly authorized a lawsuit, Mason replied. She cited the argument the Justice Department made in Yoo’s case last year, with President George W. Bush still in office, that courts should not interfere in executive decision-making, especially in wartime.

White did not indicate how or when he would rule.

Yoo, a UC Berkeley law professor now on leave to teach at Chapman University in Orange County, wrote a series of memos on interrogation, detention and presidential powers as an attorney in the Justice Department’s Office of Legal Counsel from 2001 to 2003.

The best-known memo, written to then-White House Counsel Alberto Gonzales in 2002, said rough treatment of captives amounted to torture only if it caused the same level of pain as “organ failure, impairment of bodily function or even death.” It also said the president may have the power to authorize torture of enemy combatants.

Yoo also advised the Bush administration that the Geneva Conventions on humane treatment of captives did not apply to terrorist suspects classified as enemy combatants.

A 2001 Yoo memo, made public recently by the Obama administration, said U.S. military forces could use “any means necessary” to seize and hold terror suspects in the United States, without constitutional restrictions.

Yoo’s memos “left our client in a legal no-man’s land,” said Hope Metcalfe, a Yale Law School teacher who represents Padilla. His suit alleges that Yoo, as a member of Bush’s War Council, helped to devise detention and interrogation policies and knowingly breached constitutional standards in his memos to provide legal cover for those policies.

Padilla, a U.S. citizen and Muslim convert, was arrested in Chicago in 2002 and accused by the Bush administration of plotting with al Qaeda to detonate a radioactive “dirty bomb.”

Declared an enemy combatant, Padilla was held in a brig for 3 1/2 years before being charged with taking part in an unrelated conspiracy to provide money and supplies to Islamic extremist groups. He was convicted and sentenced to 17 years in federal prison. He has appealed.

Padilla’s lawsuit covers his time in the brig. His lawyers say he was illegally held as an enemy combatant, kept in isolation, confined in painful stress positions for prolonged periods, subjected to sleep deprivation and sensory deprivation, and threatened with harm to his family and with transfer to a nation where he would be tortured.

Obama prohibited most of those methods shortly after taking office.

Padilla claims Yoo was partly responsible for his treatment. Although government lawyers normally cannot be sued for legal advice, his suit accuses Yoo of stepping outside a lawyer’s proper role and giving advice he knew was unconstitutional.

Mason, the Justice Department lawyer, said Yoo had no authority over Padilla and merely “gave very general advice about very general problems” for Bush to decide. Any court scrutiny of Yoo’s actions “requires inquiry into the highest levels of the United States government,” she said.

Padilla has a similar suit pending in South Carolina, where he was held, against former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft and other administration officials.