[Marxism] Obama lawyers argue to drop Yoo torture suit

Louis Proyect 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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