Bush Torture Memo Author John Yoo Granted Legal Immunity
A federal appeals court has granted legal immunity to former Bush Administration Deputy Assistant Attorney General John Yoo for writing Justice Department memos between 2001 and 2003 that gave the White House legal cover to torture alleged enemy combatants, including citizens taken in the war on terrorism.
The ruling by a three-judge panel on the California-based Ninth Circuit found that there were no specific constitutional prohibitions against using the torture techniques at the time that Yoo drafted the memos while working at the Justice Department's Office of Legal Counsel.
Yoo was sued by Jose Padilla, who was a U.S. citizen that was arrested in May 2002 at a Chicago airport in an alleged Al Queda-related bombing plot. Because he was the first U.S. citizen arrested in connection with the war on terrorism, then-President Bush issued an order declaring him to be an enemy combatant and had him transferred into military custody--where he was denied the rights accorded to civilians charged with a crime in the civilian justice system. Padilla was convicted and is not in federal prison, where he awaits re-sentencing after a federal court ruled his prison term was too lenient.
Padilla claimed he was tortured while in military custody for several years--which the 9th Circuit said it would accept for the purpose of hearing this case. However, in 2001-2003, the Court found that the U.S. Supreme Court had yet to issue rulings on the rights of detainees in the war on terror, so in essence, even though it did not agree with the substance of Yoo's memos it was bound by prior law to grant him immunity from prosecution.
The heart of the Court's order is explained in this paragraph near the top of the 35-page decision:
"As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03."
Legal observers predict this case will end up before the U.S. Supreme Court, which, like recent congressional legislation, continues to codify practices developed during the war on terrorism, including inconsistencies in the law surrounding executive branch authority to strip U.S. citizens of constitutional rights in wartime.