Peace and Justice Post

by Bob Egelko,  The San Francisco Chronicle, Dec 8, 2009

SAN FRANCISCO – The Obama administration has asked an appeals court to dismiss a lawsuit accusing former Bush administration attorney John Yoo of authorizing the torture of a terrorism suspect, saying federal law does not allow damage claims against lawyers who advise the president on national security issues.

Such lawsuits ask courts to second-guess presidential decisions and pose “the risk of deterring full and frank advice regarding the military’s detention and treatment of those determined to be enemies during an armed conflict,” Justice Department lawyers said Thursday in arguments to the Ninth U.S. Circuit Court of Appeals in San Francisco.

Other sanctions are available for government lawyers who commit misconduct, the department said. It noted that its Office of Professional Responsibility has been investigating Yoo’s advice to former President George W. Bush since 2004 and has the power to recommend professional discipline or even criminal prosecution.

The office has not made its conclusions public. However, The Chronicle and other media reported in May that the office will recommend that Yoo be referred to the bar association for possible discipline, but that he not be prosecuted.

Yoo, a UC Berkeley law professor, worked for the Justice Department from 2001 to 2003. He was the author of a 2002 memo that said rough treatment of captives amounts to torture only if it causes the same level of pain as “organ failure, impairment of bodily function or even death.” The memo also said the president may have the power to authorize torture of enemy combatants.

In the current lawsuit, Jose Padilla, now serving a 17-year sentence for conspiring to aid Islamic extremist groups, accuses Yoo of devising legal theories that justified what he claims was his illegal detention and abusive interrogation.

The Justice Department represented Yoo until June, when a federal judge in San Francisco ruled that the suit could proceed. The department then bowed out, citing unspecified conflicts, and was replaced by a government-paid private lawyer.

Yoo’s new attorney, Miguel Estrada, argued for dismissal in a filing last month, saying the case interfered with presidential war-making authority and threatened to “open the floodgates to politically motivated lawsuits” against government officials. The Justice Department’s filing Thursday endorsed the request for dismissal but offered narrower arguments, noting its continuing investigation of Yoo.

Padilla, a U.S. citizen, was arrested in Chicago in 2002 and accused of plotting with al Qaeda to detonate a radioactive “dirty bomb.” He was held for three years and eight months in a Navy brig, where, according to his suit, he was subjected to sleep deprivation, sensory deprivation and stress positions, kept for lengthy periods in darkness and blinding light, and threatened with death to himself and his family.

He was then removed from the brig, charged with and convicted of taking part in an unrelated conspiracy to provide money and supplies to extremist groups.

Padilla’s suit says Yoo approved his detention in the brig and provided the legal cover for his allegedly abusive treatment. U.S. District Judge Jeffrey White refused to dismiss the case in June.

The Justice Department’s filing Thursday said Padilla is asking the courts to determine the legality of Yoo’s advice, Bush’s decision to detain Padilla, the conditions of his confinement and the methods of his interrogation – all “matters of war and national security” that are beyond judicial authority.