[Marxism] Obama lawyers argue to drop Yoo torture suit
lnp3 at panix.com
Mon Mar 9 07:47:28 MDT 2009
Obama lawyers argue to drop Yoo torture suit
Bob Egelko, Chronicle Staff Writer
Saturday, March 7, 2009
John Yoo, as a member of the Bush Justice Department, wro...
(03-06) 18:08 PST SAN FRANCISCO -- 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
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.
E-mail Bob Egelko at begelko at sfchronicle.com.
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