David Cole writes: Sometimes I think being American means never having to say you’re sorry. On Wednesday, May 2, the US Court of Appeals for the Ninth Circuit, a federal appeals court in San Francisco, unanimously dismissed a lawsuit against former Justice Department lawyer John Yoo by José Padilla, the US citizen picked up at O’Hare Airport and held in military custody as an “enemy combatant” for three and a half years, during which he says he was subject to physical and psychological abuse.

As an official in the Justice Department’s Office of Legal Counsel from 2001 to 2003, Yoo wrote multiple memos designed to deny “enemy combatants” legal protections that might get in the way of our holding them incommunicado, depriving them of sleep, slamming them into walls, forcing them into painful stress positions, and waterboarding them. Padilla alleged that Yoo’s memos provided the basis for his years in detention, of which twenty-one months were in incommunicado isolation, and authorized his captors to subject him to abuse. As a result, he claims, he was threatened with death and serious physical abuse; shackled in painful stress positions for hours at a time; administered psychotropic drugs; denied medical care; and exposed to extreme temperatures.

The court dismissed the case before the truth of these allegations could be tested. It reasoned that even if Padilla’s allegations were true, it was not “clearly established” that his treatment violated the Constitution, and therefore the suit must be dismissed. John Yoo could not even be sued for the nominal damages of one dollar that Padilla and his mother sought as a way of emphasizing that their desire was for vindication of their rights, not remuneration. [Continue reading…]