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 TwitterShare on Reddit0Share on Facebook1Google+0Email to someone

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

Emptywheel Twitterverse
emptywheel @biasedreporter Yes, as I've written about multiple times.
2hreplyretweetfavorite
bmaz @emptywheel Whaaaa? You didn't stay up until Pat's first pick? I'd kill if the Cards on the clock took MSU QB, but don't think they will.
7hreplyretweetfavorite
bmaz The last smart play the 49ers executed was to get rid of Kaptain Khaki. Since then, 0 fer 9ers
7hreplyretweetfavorite
bmaz Have to say, every time I see Roger Goodell at the podium, I want to massively heave.
7hreplyretweetfavorite
bmaz @theurbansherpa No matter what, gotta grant the guy his performance, especially in the clutch. Other than that though, what a horrible human
7hreplyretweetfavorite
bmaz @theurbansherpa I don't know what that was that was the red ooze. But dude was on bad ass pitcher. Saw it up+close, inc. World Series, here
7hreplyretweetfavorite
bmaz RT @theurbansherpa: @bmaz Remember that day we thought it was blood from a torn ligament soaking into his sock, but it turned out it was hi…
7hreplyretweetfavorite
bmaz Dunno about that, but if so, there is one less with the firing of Schilling https://t.co/YAVasEbuuU
7hreplyretweetfavorite
bmaz @RMFifthCircuit It really is
7hreplyretweetfavorite
bmaz RT @RMFifthCircuit: This is possibly the worst man's shirt ever. https://t.co/PCUZMEFdH3
7hreplyretweetfavorite
bmaz @tomecurran @richeisen Uh, whut??
7hreplyretweetfavorite
bmaz Roger Goodell and the @NFL are out of control. https://t.co/zSfcYmCA4N
7hreplyretweetfavorite