'Torture memos' author can't be sued for harsh interrogations, court rules

A federal appeals court ruled on Wednesday that the author of the so-called “torture memos” during the Bush administration could not be sued by an American citizen who claims he was tortured while being held without charge in military detention for three years and eight months.

José Padilla and his mother, Estela Lebron, had filed suit against former Deputy Assistant Attorney General John Yoo for allegedly creating a legal justification for Mr. Padilla’s open-ended detention and the coercive interrogation methods used to try to break him psychologically.

Padilla was accused of plotting with Al Qaeda to conduct a “dirty bomb” attack on a US city. The allegation, which has never been substantiated, was used to justify his treatment.

 Padilla was initially detained in the criminal justice system, but after a court ruled in his favor, he was designated an enemy combatant by President Bush and held incommunicado at the Navy brig near Charleston, S.C.

The US government believed he had information about Al Qaeda that might help prevent future terror attacks on the US. He was subjected to extreme isolation, including sensory confusion techniques, sleep deprivation, and stress positions. Mental-health professionals who examined him after his release from the brig said he had suffered severe and perhaps permanent psychological damage from his treatment as an enemy combatant.

The lawsuit sought two goals. His lawyers wanted a judge to declare that Padilla’s treatment violated US constitutional protections. They also sought nominal damages of $1 from Mr. Yoo, now a constitutional scholar and law professor at the University of California at Berkeley.

In throwing the lawsuit out, the panel of the Ninth US Circuit Court of Appeals said that Yoo was entitled to qualified immunity because it was not clearly established in the early years of the Bush administration that Padilla’s treatment amounted to torture.

“We assume without deciding that Padilla’s alleged treatment rose to the level of torture,” Judge Raymond Fisher wrote for the three-judge panel. “That it was torture was not, however, beyond debate in 2001-03.”

He added: “In light of that debate…, we cannot say that any reasonable official in 2001-03 would have known that the specific interrogation techniques allegedly employed against Padilla, however appalling, necessarily amounted to torture.”

The Ninth Circuit panel stressed that it was “beyond debate” in 2001-03 that it was unconstitutional for the government to torture an American citizen. But the court said it was not “clearly established at that time that the treatment Padilla alleges he was subjected to amounted to torture.”

The 2002 “torture memo” set broadly permissive standards giving significant leeway to interrogators. It says a subject would have to experience pain equivalent to organ failure to prove torture.

The memo also set broadly permissive standards for the infliction of mental harm.

“The development of a mental disorder such as post-traumatic stress disorder, which can last months or even years, or even chronic depression, which can last a considerable period of time if untreated, might satisfy the prolonged harm requirement” to prove torture, the memo says.

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