Bush-era lawyer could stand trial for penning 'torture memos'

The debate over what should happen to Bush administration lawyers who drafted the so-called "torture memos" has taken a new turn.

A federal judge in San Francisco ruled Friday a former Justice Department legal adviser can be held personally responsible for the indefinite military detention and alleged torture of an American citizen who was suspected of involvement with Al Qaeda.

The ruling clears the way for John Yoo to stand trial in a civil lawsuit for his role in producing a series of legal memos authorizing harsh interrogation tactics that were later used against suspected enemy combatant Jose Padilla.

"Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct," wrote US District Judge Jeffrey White in a 42-page decision.

Judge White's decision reignites debate about whether government lawyers should be investigated and prosecuted for their involvement with the memos.

Some analysts say government lawyers should never face criminal charges for advice – even bad advice – if offered in a good faith belief it was legal. Others say Bush administration lawyers appear to have acted more like mafia consiglieri, helping their bosses evade the law rather than comply with it.

The Justice Department lawyers who are defending Mr. Yoo argue that Mr. Padilla's treatment did not violate any clearly established constitutional rights. In addition, they say Yoo should enjoy qualified immunity from such lawsuits.

Judge White rejected those arguments, saying that Padilla's lawyers had alleged sufficient facts to satisfy the requirement that "Yoo set in motion a series of events that resulted in the deprivation of Padilla's constitutional rights."

The Padilla case is significant because it represents the only opportunity available for judicial examination of the constitutionality of Mr. Padilla's treatment in military detention, according to the judge.

The US Supreme Court recently threw out a similar lawsuit filed by a former detainee in New York against former Attorney General John Ashcroft and FBI Director Robert Mueller. The high court said the detainee failed to show enough personal involvement by the two senior officials in the alleged abusive treatment.

"Here, in contrast, Padilla alleges with specificity that Yoo was involved in the decision to detain him and created a legal construct designed to justify the use of interrogation methods that Padilla alleges were unlawful," White wrote.

Specifically, the judge said Padilla's incommunicado military detention without charge for nearly two years is sufficient to state a claim for a violation of Padilla's constitutional right to access to the courts.

He also ruled that Yoo could face trial for allegedly violating Padilla's right to practice his religion as guaranteed by the Religious Freedom Restoration Act.

Padilla is currently serving a 17-year prison sentence following his conviction in Miami for conspiring to provide material support to Al Qaeda.

The Supreme Court had been set to consider his case in early 2006, until the Bush administration transferred Padilla from military detention to the criminal-justice system, short-circuiting that review.

A Justice Department spokesperson said lawyers in the case are continuing to study Friday's decision and have not yet decided whether to appeal.