- Associated Press - Wednesday, May 2, 2012

SAN FRANCISCO — An appeals court on Wednesday tossed out a terrorist’s lawsuit accusing a high-ranking Bush administration lawyer who wrote the so-called “torture memos” of authorizing illegally harsh treatment of “enemy combatants.”

Former Deputy Assistant Attorney General John Yoo is protected from such lawsuits because the law defining torture and the treatment of enemy combatants was unsettled in the two years after the Sept. 11 terror attacks, when the memos were written, the 9th U.S. Circuit Court of Appeals said.

The memos have been embroiled in national security politics for years after laying out a broad interpretation of executive power.

A Yoo memo from 2001 advised that the military could use “any means necessary” to hold terror suspects. A 2002 memo to then-White House Counsel Alberto Gonzales advised that treatment of suspected terrorists was torture only if it caused pain levels equivalent to “organ failure, impairment of bodily function or even death.”

Mr. Yoo also advised that the president might have the constitutional power to allow torturing enemy combatants.

Most famously, Mr. Yoo was the principal author of a memo sent to the CIA in August 2002 authorizing “waterboarding,” in which water is poured over the face of a bound detainee and simulates drowning. President Obama banned its use in 2009.

The unanimous ruling of the three-judge panel reversed a lower court decision allowing Jose Padilla’s lawsuit to go forward. Padilla is serving a 17-year sentence on terror charges.

Padilla was arrested in May 2002 at Chicago’s O’Hare International Airport and charged with conspiring with al Qaeda to detonate a radioactive “dirty bomb.” President George W. Bush deemed him an enemy combatant, and he was held in military custody for nearly four years before being charged in federal court.

Padilla claims that during his military custody, he was subjected to a wide range of harsh interrogation techniques that amounted to illegal torture. Padilla said he underwent prolonged isolation, light deprivation, extreme variations in temperature, loud noises, administration of psychotropic drugs and other techniques that he says Mr. Yoo authorized.

The memos authorized CIA interrogators to use waterboarding, keep detainees naked, hold them in painful standing positions and keep them in the cold for long periods of time. Other techniques included depriving them of solid food and slapping them. Sleep deprivation, prolonged shackling and threats to a detainee’s family were also used.

“There was at that time considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques,” Judge Raymond Fisher wrote for the appeals panel. “In light of that debate … we cannot say that any reasonable official in 2001-03 would have known that the specific interrogation techniques allegedly employed against Padilla, however appalling, necessarily amounted to torture.”

The appeals panel also said the trial court erred when it concluded that Padilla and other suspected terrorists held by the military enjoyed the same rights as ordinary prison inmates.

Judge Fisher was joined by Judges N. Randy Smith and Rebecca R. Pallmeyer. Judges Fisher and Pallmeyer were appointed by President Clinton. Mr. Bush appointed Judge Smith.