Bush administration lawyer granted qualified immunity in torture suit

The US Court of Appeals for the Ninth Circuit on May 2 granted qualified immunity to former Bush administration official John Yoo over allegations of wrongdoing in relation to controversial memos asserting the legality of “enhanced interrogation techniques.” The lawsuit, brought by convicted terrorism defendant Jose Padilla, claimed Yoo’s legal opinions endorsing “enhanced interrogation techniques” led to Padilla being tortured. Padilla, a US citizen currently serving a 17-year sentence on terrorism-related charges, said that he was tortured while held as an “enemy combatant” in military custody in a Navy military brig in Charleston, SC. In granting qualified immunity, the panel wrote:

We agree with the plaintiffs that the unconstitutionality of torturing a United States citizen was “beyond debate” by 2001. 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. … In 2001-03, there was general agreement that torture meant the intentional infliction of severe pain or suffering, whether physical or mental. The meaning of “severe pain or suffering” however, was less clear in 2001-03.

The panel went on to note a number of influential opinions at the time that had declined to define which severe interrogation methods qualified as torture. The panel refused to decide if Padilla’s treatment amounted to torture, but, if it had, they held that the definition of torture was not “beyond debate” in 2001-03.

Yoo was a lawyer with the US Department of Justice (DoJ) Office of Legal Counsel (OLC) and is now a professor at the University of California Berkeley School of Law. He could have faced disbarment.

From Jurist, May 3. Used with permission.

See our last posts on the Padilla case and the torture scandals.