Yoo Immunity Ruling: A Road Map to Justifying the Unjustifiable

Last week, the 9th Circuit Court gave John Yoo immunity, bringing an end to a lawsuit brought by Jose Padillo.  Padillo was arrested in Chicago in 2008 and charged with conspiring with Al Qaeda to detonate a dirty bomb within the United States.  Designated as an enemy combatant by the Bush administration, Padillo spent nearly four years in Military detention before he was tried and convicted in Federal Court.

Padillo filed the law suit, claiming that he was tortured while under Military detention under John Yoo’s authority.

The reasoning offered in this decision is disappointing, to put it mildly.

Although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

As observed by Andrew Rosenthal:

 In English: If Mr. Padilla’s telling the truth, he was tortured, and that’s obviously unconstitutional. That’s been “clearly established” by Supreme Court ruling. But in the early aughts, the definition of torture wasn’t obvious—hadn’t been “clearly established” by the Court. So Mr. Yoo’s off the hook.


To be sure, a lot about law is such that reasonable people can draw reasonably different conclusions about a given law’s interpretation and scope.  This is especially true about recently developed law.  However, in the case of torture, the legal history is both long and consistent.  As reflected in Evan Wallach’s article, Drop by Drop, Forgetting The History of Water Torture in U.S. Courts.

Indeed, despite increasing discussion of variations of the technique, and their application on a global scale14, nobody seems to remember15 that, not so very long ago, the United States, acting alone before domestic courts, commissions and courts-martial, and as a participant in the world community, not only condemned the use of water torture, but severely punished as criminals those who applied it.

In fact, a Texas Sheriff was convicted by the Reagan administration in 1983 for water-boarding prisoners.  Yes, the President who conservatives keep telling us is their hero.

As noted by Evan Wallach in 2007,

In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners’ civil rights by forcing confessions. The complaint alleged that the officers conspired to “subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning.

The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.”

The case Wallach refers to is U.S. v. Parker et al.  The trial court findings were upheld by the 5th District Court on appeal (see  U.S. v Lee et al 744 F.2d 1124)

It is worth noting the defense arguments, which the trial court rejected.

At trial, Baker’s defense as developed by his counsel and his testimony rested on two points. The first was that he actively participated in only a single torture episode, and then only because ordered to do so by his superiors–a “Nuremberg defense.” The second was that while he believed the torture of prisoners immoral, he did not at the time think it was illegal.” (my bold for emphasis)

This case shows that a claim that one did not think torture was illegal was not an acceptable defense.  Yet, the 9th circuit court claims that the law on torture was not sufficiently clear at the time Yoo and others wrote the torture memos – decades after the Parker case.  Ultimately, the claim that the law was unclear is a variant of the “I didn’t know it was illegal.” defense, as reflected in the following passage of the 9th Circuit Court decision.

Under recent Supreme Court law, however, we are compelled to conclude, regardless of the legality of Padilla’s detention and the wisdom of Yoo’s judgements, at the time he acted the law was not “sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]” the plaintiffs’ rights.

The Court’s second reason asserted that it was unclear if Padilla’s treatment rose to the level of torture.

This is while noting within the decision that Padilla was tortured since he experienced:

extreme isolation; interrogation under threat of torture, deportation and even death; prolonged sleep adjustment and sensory deprivation; exposure to extreme temperatures and noxious odors; denial of access to necessary medical and psychiatric care; substantial interference with his ability to practice his religion; and incommunicado detention for almost two years, without access to family, counsel or the courts…

serious and potentially life-threatening ailments, including chest pain and difficulty breathing, as well as for treatment of the chronic, extreme pain caused by being forced to endure stress positions.


Actually, the torture memos suggest that the authors did know that that the methods of interrogation they justified were a violation of U.S. Criminal law, specifically the law criminalizing torture.  Rather, they argued that enforcement of 2340A was unconstitutional as summarized in Wikipedia:

Part five of the memo analyzes constitutional law as to whether the statute passed by congress infringes on the powers of the president to conduct war, and concludes that it is unconstitutional. It states specifically that the nation was “in the middle of a war in which the nation [had] already suffered a direct attack,” and that limiting interrogations would encroach on the president’s ability to prevent future attacks. The memo summarizes the terrorist threat from al Qaeda, including the September 11th attacks, and states that interrogation of al Qaeda operatives allegedly lead to the stopping of Jose’ Padilla’s planned attack. It provides case law which supports its position of the executive branch to conduct war, but it does not discuss how positions previously taken by the Department of Justice regarding obligations under the Geneva Conventions impact this topic. It also discusses how any prosecution of individuals following orders from the President, even if in violation of Section 2340A, should not be possible, since it would impinge upon the president’s powers as commander-in-chief.

The recently released  Zelikow memo  contains a discussion about the meaning of cruel and unusual punishment, within the context of U.S. law and based on court rulings. More importantly, when one considers that the Torture memos didn’t address the applicability of the Geneva Conventions; Zelikow argued that they applied to al-Quaid, thus making water boarding and other forms of abuse a violations of the War Crimes statute.

The OLC not only rejected the memo but made every effort to destroy it.  Gee, I wonder why?  The Zelikow memo, and for that matter Evan Wallach’s writing prove that the law was clear to reasonable government officials.  Reasonable government officials were in a position to know that “enhanced interrogation techniques” are torture and that torture is a war crime.

The fact that the OLC made every effort to destroy Philip Zelkow’s memo suggests that their opinions were not based on a lack of clarity in the law.  Quite the contrary, their opinions were intended to muddy the waters.

The primary reason that the 9th Circuit’s decision is disappointing is this ruling has equated deliberately creating confusion with an absence of clarity in the law.  That amounts to a road map to immunity from prosecution for future Administrations who may wish to violate our civil rights or the rights of others.

Image from The Moderate Voice

7 Replies to “Yoo Immunity Ruling: A Road Map to Justifying the Unjustifiable”

  1. Since there is an evident conflict with the Fifth Circuit decision, can this go further up? Ought it, with those Justitutes there? Could one hypothetically catch John Yoo, force a glass rod up his penis, put said organ in a slowly tightening bench vice, and ask him, in the presence of a court reorter, bit by bit, at what point it becomes torture? Would his statement at any point in the proceeding have persuasive legal effect?

  2. Excuse me, Ms. Dixon, that is not a usable link, and this is the second article where you have posted that. Either explain the relevancy, or, as Mayor Daley said, cyst and decease.

  3. There is no doubt that torture was applied across the board and around the world. The only question is who-when will get around to actually enforcing the law instead of trying so desperately to skirt it.

    Never forget how “shocked” Bush pretended to be when he was first caught. Contrast that with the pride he later showed for doing it, so much so that he’d be happy to do it again.

    If we hadn’t found all those WMD’s based on the tortured confessions of all those Iraqi citizens then I am pretty sure heads would have rolled. /s


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