Susan Walsh, File, Associated Press
SAN FRANCISCO — For the second time this year, a federal appeals court shielded a former Bush administration lawyer from a lawsuit filed by a convicted terrorist who alleged the attorney's so-called "torture memos" led to his illegally harsh treatment while in U.S. military custody.
The two similar rulings from separate courts on both sides of the country may signal the end of inmate Jose Padilla's legal fight over the legality of the Bush administration "coercive interrogation" methods of terror suspects.
On Wednesday, the 9th U.S. Circuit Court of Appeals tossed out Padilla lawsuit against John Yoo, a former deputy attorney general who wrote a series of memos outlining permissible treatment of "enemy combatants" in military custody.
The San Francisco-based appeals court said Yoo is protected from Padilla lawsuit and similar challenges because the law defining torture and the treatment of enemy combatants was unsettled in the two years after the Sept. 11 terror attacks, when the memos were written, the 9th U.S. Circuit Court of Appeals said.
The memos have been embroiled in national security politics for years after laying out a broad interpretation of executive power.
The Richmond, Va.-based 4th U.S. Circuit Court of Appeals in January tossed out Padilla's lawsuit against former Secretary of Defense Donald Rumsfeld on similar grounds.
"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."
A Yoo memo from 2001 advised that the military could use "any means necessary" to hold terror suspects. A 2002 memo to then-White House Counsel Alberto Gonzales advised that treatment of suspected terrorists was torture only if it caused pain levels equivalent to "organ failure, impairment of bodily function or even death."
Yoo also advised that the president might have the constitutional power to allow torturing enemy combatants.
Most famously, Yoo was the principal author of a memo sent to the CIA in August 2002 authorizing "waterboarding," in which water is poured over the face of a bound detainee and simulates drowning. President Barack Obama banned its use in 2009.
The unanimous ruling of the three-judge panel reversed a lower court decision allowing Jose Padilla's lawsuit to go forward. Padilla is serving a 17-year sentence on terror charges.
Padilla was arrested in May 2002 at Chicago's O'Hare International Airport and charged with conspiring with al-Qaida to detonate a radioactive "dirty bomb" within the United States. President George W. Bush deemed him an enemy combatant, and he was held in military custody for nearly four years before being charged in federal court.
Padilla claims that during his military custody, he was subjected to a wide-range of harsh interrogation techniques that amounted to illegal torture. Padilla said he underwent prolonged isolation, light deprivation, extreme variations in temperature, loud noises, administration of psychotropic drugs and other techniques that he alleged were authorized by Yoo.
The memos authorized CIA interrogators to use waterboarding, keep detainees naked, hold them in painful standing positions and keep them in the cold for long periods of time. Other techniques included depriving them of solid food and slapping them. Sleep deprivation, prolonged shackling and threats to a detainee's family were also used.
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