Jay Bybee’s Colleagues Say OLC Lawyers Couldn’t Know that Torture Was Torture in 2001-2003

The 9th Circuit has overturned a District court ruling holding that Jose Padilla could sue John Yoo for the torture and illegal detention that Yoo’s OLC work authorized.

While the decision sucks, I’m not so surprised by it, even coming from the purportedly hippie 9th Circuit.

In fact, I’m particularly interested in the way the opinion applies the Ashcroft v. Al Kidd standard about whether the conduct alleged–now obviously recognized to be illegal–was considered as such “beyond debate” at the time of that conduct.

We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, 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.

The circuit, in other words, argued that a poor little OLC lawyer serving in the 2001 to 2003 time frame might genuinely consider the treatment that Padilla received to be legal at the time.

And remember, a number of the memos cited in the complaint were signed by then OLC head, now 9th Circuit Judge Jay Bybee.

  • A January 22, 2002 memorandum to Gonzales signed by then-Assistant Attorney General Jay Bybee but allegedly drafted by Yoo on the Application of Treaties and Laws to al Qaeda and Taliban Detainees.
  • A February 26, 2002 memorandum to Haynes signed by Bybee but allegedly created by Yoo on Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan.

[snip]

  • An August 1, 2002 memorandum to Gonzales, again signed by Bybee but allegedly created by Yoo, on Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, concluding that an interrogation technique must cause damage that rises “to the level of death, organ failure, or the permanent impairment of a significant body function” in order to be considered torture.
  • A second memorandum produced during August 2002 addressing the legality of particular interrogation techniques that the CIA wished to employ.

Oh good. We don’t have to question the competence of anyone on the 9th Circuit now, given that the 9th Circuit has judged that it was not beyond debate that Inquisition torture methods were torture when now-9th Circuit judges were signing off on claims they weren’t.

Tweet about this on Twitter10Share on Reddit0Share on Facebook10Google+0Email to someone

47 Responses to Jay Bybee’s Colleagues Say OLC Lawyers Couldn’t Know that Torture Was Torture in 2001-2003

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
  • 19
  • 20
  • 21
  • 22
  • 23
  • 24
  • 25
  • 26
  • 27
  • 28
  • 29
  • 30
  • 31
  • 32
  • 33
  • 34
  • 35
  • 36
  • 37
  • 38
  • 39
  • 40
  • 41
  • 42
  • 43
  • 44
  • 45
  • 46
  • 47

Emptywheel Twitterverse
JimWhiteGNV RT @GregMitch: @jaketapper Jake, why not try "U.S. jets meant for defense of Israel now export death to Gaza"?
9mreplyretweetfavorite
JimWhiteGNV RT @onekade: Israel pummels Gaza with bombs and meanwhile @jaketapper defends his trash hasbara piece on tunnels. What a disgusting display.
46mreplyretweetfavorite
JimWhiteGNV RT @onekade: Israel is deliberating targeting civilians with bombs that we US taxpayers purchased. Detroit needs water, but we pay for slau…
46mreplyretweetfavorite
emptywheel @sarahjeong Um. Maybe @xor is trying to trick you into unfollowing mid-Bar. That would not be good.
1hreplyretweetfavorite
emptywheel @sarahjeong Still, nothing you can't kick the shit out of.
1hreplyretweetfavorite
emptywheel @sarahjeong Wait. You can't bring your multidecals into a test for 3 days? Nutty.
1hreplyretweetfavorite
emptywheel This time tomorrow (or thereabouts) @sarahjeong will have nothing left to do before she can sue your ass but practice trolling--good luck!
1hreplyretweetfavorite
JimWhiteGNV RT @RaysBaseball: Lead: acquired. @jamesloney_7 puts #RaysUp 2-1 on @Brewers with a bases-loaded single! Stretches his streak to 17 games r…
2hreplyretweetfavorite
bmaz @JimWhiteGNV That's just.......wrong.
2hreplyretweetfavorite
JimWhiteGNV RT @WinWithoutWar: Empowering speech from @barbaraslavin1 at @BerimOrg's advocacy dinner! #letdiplomacywork #IranDeal @plough_shares http:/…
2hreplyretweetfavorite
JimWhiteGNV Attention @bmaz: This #Rays fan is demonstrating the only proper use of cheese. http://t.co/B4N3bounOp
2hreplyretweetfavorite
bmaz @howellsacto @emptywheel Excellent point.
2hreplyretweetfavorite