Torture Memo Author, John Yoo, Immune from Prosecution: Ninth Circuit Court of Appeals

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Joe Wright

A federal judge who ruled that "enemy combatant" Jose Padilla could file suit against John Yoo who authored the torture memo that legitimized the horrific treatment of detainees, has had his decision reversed by the 9th Circuit Court of Appeals today. 

Jose Padilla, a United States citizen, was incarcerated for four years without trial for an alleged 2002 "dirty bomb" plot and has been trying to sue Donald Rumsfeld as well as other U.S. officials for his mistreatment while detained in a military brig in South Carolina. 

Padilla asserts that the torture treatment he received was as a direct result of the memos authored by Yoo that provided the authority needed to commence with "enhanced interrogation" for those labeled as "enemy combatants."  The ramifications of these memos have permeated throughout the military up to and including the authorization of drone bombings in Pakistan. 

It is not only Padilla asking for redress, but civil rights groups such as the ACLU.


The torture memo has been scrutinized as much for the type of treatment it laid out, as for the coverup that followed the release.  Mother Jones reported back in September of 2010, that the Justice Department itself had concluded after its internal investigation that,

 (it) 'had not been routine' and included the intriguing detail that a trove of key documents had been destroyed. These included almost all of Justice Department official John Yoo's emails. The report noted that investigators for the agency's Office of Professional Responsibility had been informed that these records 'had been deleted and were not recoverable.' Without the emails of one of the primary authors of the memos, the OPR could only cobble together a partial picture of how Bush administration lawyers had crafted a legal rationale for the use of torture. (Source)

This led to a lawsuit by the Citizens for Responsibility and Ethics in Washington that was responded to by the Justice Department by releasing 900-plus pages of rather mundane e-mails, but deliberately witholding 147 documents believed to be relevant to the case.It is this backdrop which has civil libertarians concerned about what led a U.S. citizen to wind up incarcerated without trial and tortured. 

The 9th Circuit has made the convoluted argument that since the torture of Padilla occurred before clear rules were established in 2004 by the U.S. Supreme Court for the treatment of enemy combatants, while Yoo's memos were being written, he cannot be personally held accountable. (Source)

This ruling is the final nail in the coffin for any justice in the case of Jose Padilla, as it adds to his loss in January of this year in his appeal to the 4th Circuit for damages. In that case it was ruled that he was outside of the legal framework meant to deal with government conduct that tort litigation is intended to address. (Source)

The real losers in this case are all American citizens, since it has been determined that under the NDAA we officially have no right to be treated with dignity in peace time or war, whether accused, falsely arrested, tortured, or found legitimately guilty. The full ramifications of the justice system abandoning its own have yet to be felt; but based on the treatment of Jose Padilla, and his lack of recourse to the rule of law, it is difficult not to agree with the conclusion of ACLU attorney, Ben Wizner, commenting on the loss in the 4th Circuit, which is now reinforced by the Ninth:

By dismissing this lawsuit, the appeals court handed the government a blank check to commit any abuse in the name of national security, even the brutal torture of a U.S. citizen on U.S. soil. This impunity is not only anathema to a democracy governed by laws, but contrary to history’s lesson that in times of fear our values are a strength, not a hindrance.  (Source)

The 9th Circuit Court of Appeals has once again sided with a bloodthirsty, well-documented, doctrine of torture. They have ruled that the secrets of the State are more important than the rights of the individual . . . even U.S. citizens. Until this point, there was some hope that America would come to its senses, but instead we head further down the slippery slope to a place where torture and even re-education and internment camps have become acceptable. Unless individual states rise up against our out-of-control Federal handlers, we will not be looked upon fondly in the annals of future world history.

Read other articles by Joe Wright here.

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