Terror Plotter Jose Padilla Can’t Press|Bush Lawyer on Alleged Torture

     (CN) – A former Bush administration attorney is not liable for the alleged harsh treatment of convicted terrorist supporter Jose Padilla, the 9th Circuit ruled Wednesday, saying the borders of torture were not clearly defined during the man’s time in detention.
     Authorities arrested Padilla, a Brooklyn native, in 2002 at Chicago O’Hare International Airport, based on suspicion that Padilla was involved in a “dirty bomb” plot. Declared an enemy combatant for his alleged ties to al-Qaida, Padilla spent 3 1/2 years in military custody in South Carolina without access to an attorney or family.
     He says his jailers subjected him to death threats, sleep and sensory deprivation, severe pain, and other enhanced interrogation techniques.
     After a Florida jury convicted Padilla in 2007 for aiding terrorists, a federal judge sentenced the 41-year-old to 17 years in prison. He is currently being held at the Supermax prison in Florence, Colo.
     Padilla and his mother, Estela Lebron, sought to pin alleged detention abuses on John Yoo, the former deputy assistant attorney general for the U.S. Department of Justice’s Office of Legal Counsel. Yoo, a law professor at University of California, Berkeley, is widely known as one of the architects of the Bush administration’s legal justifications for indefinite detention and enhanced interrogation.
     “Padilla and Lebron alleged that Yoo set in motion Padilla’s allegedly illegal interrogation and detention, both by formulating unlawful policies for the designation, detention and interrogation of suspected ‘enemy combatants’ and by issuing legal memoranda designed to evade legal restraints on those policies and to immunize those who implemented them,” according to the court.
     Yoo moved to dismiss the San Francisco lawsuit based on qualified immunity, but U.S. District Judge Jeffrey White declined, finding that a reasonable official would have understood that Padilla’s detention and treatment were illegal from 2001 to 2003.     
     But the federal appeals court reversed Wednesday, finding that Yoo has qualified immunity.
     “We assume without deciding that Padilla’s alleged treatment rose to the level of torture,” Judge Raymond Fisher for the three-judge panel. “That it was torture was not, however, ‘beyond debate’ in 2001-03. There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques. In light of that debate, as well as the judicial decisions discussed above, 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. Thus, although we hold that the unconstitutionality of torturing an American citizen was beyond debate in 2001-03, it was not clearly established at that time that the treatment Padilla alleges he was subjected to amounted to torture.”
     Yoo’s attorney, Miguel Estrada, partner at Gibson, Dunn & Crutcher in Washington, D.C., praised the ruling in a statement sent to Courthouse News.
     “The Ninth Circuit’s decision confirms that this litigation has been baseless from the outset,” he said. “For several years, Padilla and his attorneys have been harassing the government officials he believes to have been responsible for his detention and ultimately conviction as a terrorist. He has now lost before two separate courts of appeals, and will need to find a new hobby for his remaining time in prison.”
     Padilla’s attorney, Jonathan Freiman of Wiggin and Dana, said that the federal appeals court had overlooked the universal condemnation of torture.
     “Incommunicado detention, brutal treatment and death threats do not represent American values and are universally condemned,” Freiman told Courthouse News. “Hopefully no one else will face the horror that Mr. Padilla and his family have faced. The law should guarantee that, and the Ninth Circuit erred in concluding that Mr. Yoo’s actions were not ‘beyond debate.'”
     The 9th Circuit’s reversal aligns with a sister circuit’s handling of a separate case that Padilla and Lebron filed in South Carolina against former Secretary of Defense Donald Rumsfeld, former Attorney General John Ashcroft and others.
     The 4th Circuit affirmed dismissal of that case earlier this year.

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