An American Lion

The Obama administration has asked an appeals court to dismiss a lawsuit accusing former Bush administration attorney John Yoo of authorizing the torture of a terrorism suspect, saying federal law does not allow damage claims against lawyers who advise the president on national security issues.

In the current lawsuit, Jose Padilla, now serving a 17-year sentence for conspiring to aid Islamic extremist groups, accuses Yoo of devising legal theories that justified what he claims was his illegal detention and abusive interrogation.

Yoo, a UC Berkeley law professor, worked for the Justice Department from 2001 to 2003. He was the author of a 2002 memo that said rough treatment of captives amounts to torture only if it causes the same level of pain as “organ failure, impairment of bodily function or even death.” The memo also said the president may have the power to authorize torture of enemy combatants.

The office has not made its conclusions public. However, The Chronicle and other media reported in May that the office will recommend that Yoo be referred to the bar association for possible discipline, but that he not be prosecuted.

Other sanctions are available for government lawyers who commit misconduct, the department said. It noted that its Office of Professional Responsibility has been investigating Yoo’s advice to former President George W. Bush since 2004 and has the power to recommend professional discipline or even criminal prosecution.

Such lawsuits ask courts to second-guess presidential decisions and pose “the risk of deterring full and frank advice regarding the military’s detention and treatment of those determined to be enemies during an armed conflict,” Justice Department lawyers said Thursday in arguments to the Ninth U.S. Circuit Court of Appeals in San Francisco.