Bob Egelko, San Francisco Chronicle Staff Writer, 1/5/08

A man who was held in isolation for more than three years before being tried and convicted of aiding terrorists filed suit Friday against the UC Berkeley law professor and former Justice Department official whose memos justified inflicting physical and mental pain during interrogations.

Military officials relied on John Yoo’s writings in subjecting Jose Padilla to prolonged sensory deprivation, sleep interruption, stress positions and other techniques designed to break his will, Padilla’s lawyers said in a lawsuit filed in San Francisco. Padilla faces sentencing Monday in Miami.

The same lawyers filed a similar suit in South Carolina last year against former Defense Secretary Donald Rumsfeld and other Pentagon officials who they said authorized Padilla’s detention and harsh treatment. One new element in Friday’s suit against Yoo is that it seeks to hold a former government lawyer responsible for allegedly unconstitutional acts by officials who followed his legal advice.

“John Yoo was central to the justification and creation of the torture system,” Jonathan Freiman, an attorney at a Yale Law School human rights clinic who represents Padilla, said in a statement. “What Yoo seems to have forgotten is that lawyers are not above the law.”

Carl Tobias, a University of Richmond law professor, said the suit faces difficult hurdles because lawyers normally can’t be held liable for the consequences of their advice, or government officials for their policy decisions.

Yoo was unavailable for comment. In a 2006 book, “War by Other Means,” he described working on a memo that led to Padilla’s 2002 detention in a Navy brig, and also defended his August 2002 memo on interrogation methods that was cited in Friday’s lawsuit.

That memo, written to then-White House Counsel Alberto Gonzales, said legal prohibitions against torture applied only to the infliction of pain as severe as that caused by “organ failure, impairment of bodily function or even death.” It also said the president may have the constitutional power to authorize torture of enemy combatants.

The Justice Department repudiated the memo in 2004, when Gonzales was up for confirmation as attorney general. Before the document surfaced, the official who signed it, Jay Bybee, Yoo’s Justice Department supervisor, was appointed by President Bush to the Ninth U.S. Circuit Court of Appeals in San Francisco.

Padilla, a U.S. citizen and Muslim convert, was arrested in Chicago in 2002 and accused by Bush administration officials of plotting with al Qaeda to detonate a radioactive “dirty bomb.”

He was declared an enemy combatant by Bush and held in a brig without charges for 3 1/2 years, then charged with taking part in an unrelated conspiracy to provide money and supplies to Islamic extremist groups, with no reference to the alleged radioactive bomb. After prosecutors offered evidence of a document linking Padilla to an al Qaeda training camp in Afghanistan, he and two co-defendants were convicted in August.

Padilla’s lawyers have cited his treatment in the brig in an unsuccessful attempt to dismiss the charges and in opposing a life sentence sought by the government. Prosecutors say his treatment in military custody was irrelevant to the case and deny that he was tortured.

Friday’s civil suit, filed on behalf of Padilla and his mother, Estela Lebron, said he had been subjected to physical and mental abuse throughout his confinement. He was kept in a blacked-out cell, hooded whenever he was let out, prevented from sleeping by loud noises, shackled or forced to stand in painful positions for long periods, exposed to extreme heat, cold and noxious fumes, threatened with death and denied access to lawyers, relatives or anyone else except his guards and interrogators, the suit says.

Padilla’s lawyers said government documents show that Defense Department officials relied on Yoo’s advice, in the August 2002 memo and other writings that “purported to provide legal justification for unprecedented and illegal detention and interrogation techniques.”

Although Padilla’s lawyers say he suffered serious psychological harm and violations of numerous constitutional rights, the suit seeks only token damages of $1, along with a declaration that Yoo acted illegally.

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