In a curious lawsuit, accused terrorist Jose Padilla has sued Law Professor John Yoo. Yoo is the supposedly one of the authors of several memos supporting President Bush’s enemy combatant policy and has been linked to the abuse that resulted from that policy. Yoo and Georgetown Professor Viet Dinh have been criticized for their roles in creating these abuses that include a formal torture program and the denial of basic constitutional rights.
Jose Padilla’s case remains one of the most disturbing in U.S. history. After President Bush stripped him of his constitutional rights and held him without charge, he was subjected to cruel conditions and denied access to the courts and counsel. Neither Democrats nor Republicans did a thing in Congress despite an outcry from the nation’s lawyers and civil libertarians. All of the politicians running today on civil liberties were strangely silent for years as this abuse occurred in full knowledge of the public. Every effort to get judicial relief was block by cynical legal moves by the Justice Department to move Padilla or his case. The Supreme Court ultimately adopted the most technical of technicalities to avoid ruling on his case: the caption on this case was wrong because it failed to name the right government official. Of course, since the government was hiding Padilla and moving him around like a Where’s Waldo exercise, it was hard to name the right official at the time of original filing.
Ultimately, the Justice Department charged Padilla on crimes entirely unrelated to the original alleged crime: planning a possible nuclear attack on a major city. That was the sensational allegation trumped by John Ashcroft at an infamous press conference — forcing the White House to later retract Ashcroft’s statements.
Padilla is a U.S. citizen arrested in the U.S. He was however, denied the most basic constitutional rights for years and, according to his lawyers, remains mentally disturbed from his harsh treatment by the government. He was held without criminal charge for 3½ years at a Navy brig in Charleston, S.C.
Yoo was deputy assistant attorney general in the Office of Legal Counsel and provided much of the justification for these infamous policies as did Viet Dinh. The lawsuit was brought by Padilla and his mother, Estela Lebron, and asks only $1 in damages. It is clearly meant to secure a moral judgment against Yoo. Padilla attorney Jonathan Freiman, a professor at Yale Law School, filed the action. Yoo is a law professor at the University of California at Berkeley. For a copy of the complaint, click here
I have debate Yoo on a number of occasions on these policies. While he is personally a warm and engaging individual, his views as expressed in these memos are horrific for those of us who believe in civil liberties. Like Dinh, he became a symbol of law professors in collusion with the crimes committed by the Administration. Both Dinh and Yoo also reflect how 9-11 became an opportunity for academics to realize their long-held interest in expanding presidential powers and limiting the rights of the accused.
Nevertheless, this is a highly questionable filing and has little chance of success in my view. Lawyers give advice — perhaps bad advice — but legal responsibility rests with those who order the unconstitutional or criminal practices. This is not to say that the Bush lawyers cannot be charged with crimes. The destruction of the CIA tapes is a good example of possible criminal acts and disbarring act for administration lawyers who knew of both the torture and the plan to destroy the evidence.
Despite the revulsion that many of us feel over the work of Yoo, Dinh and others, they were advocating their view of presidential power and constitutional rights. These are views that have been repudiated by lawyers and citizens alike. However, they are not the basis for civil liability and court flings should not be used to advance such purely emotive attacks. If this were the case, conservatives could sue liberal lawyers under claims that they enabled terrorist acts through their legal advice. Officials must be able to receive and lawyer must be able to give legal advice without fear of lawsuit. In that sense, I do not view this as a worthy or wise lawsuit.
For the full story, click here
Agree with your views on torture and accountability, John. Carry on vigorously on that.
As to Yoo, it is obvious you are viewing matters as a constitutional law prof, not as a civil rights lawyer. The cases firmly establish that government actors may (many technicalities, but generally) be held to personally answer for their acts that violate federal law and injure another.
It is further apparent that you are not actually a lawyer who must provide legal advice, and have not thought carefully about the limits of that privilege, and do not realize that a lawyer can cross the line into becoming a criminal (aiding and conspiracy) if they do not understand and take great care.
Here Yoo crossed the line. Wayyyyy over the line. If it was deliberate or in callous disregard he is a malicious criminal and should go to prison, and if it was just ignorant stupidity and overzealous advocacy he is an overzealous ignorant and dangerous whackjob who should not be teaching law or practicing law anywhere, and probably should be in prison not just facing civil liability.
This case has nothing to do with the core or even branch responsibility of providing a client with legal advice. It has nothing to do with that and does not imperil that important job in the slightest. What we had here was an overzealous ideaolog with delusions of competence who did not remotely comprehend the limits of his ability or of basic law, either the law of torture or the law of giving legal advice without becoming a criminal.
The case is clearly about Yoo’s conduct that exceeded the mere giving of legal advice. It only takes a few extra facts, which appear present frankly and unfortately for him, to take him from “lawyer” to “criminal”. I personally favor his prosecution for war crimes based on what he did. The Nuremberg trials of judges are a solid precedent for prosecuting Yoo.
You should have known all this, John. I’m with you on the torture issue but clue up on Yoo, my friend. And stop undermining your credibility with strawman arguments, Yoo wasn’t acting as a lawyer he was acting as a criminal.
Cheers.
Mr.Turley:
Throwing personal opinions aside, does this Bivens action have a chance of surviving a motion to dismiss (12b(6)) under the due process clause of the 5th Amendment, since he was a pre-trial detainee when the alleged unconstitutional acts occurred (and thus punished without having been convicted under Graham v. Conner)? I know that most successful Bivens actions so far have been under the 4th and 8th Amendments
From the Office of Personnel Management and here’s is the part I really like:
“…As Federal civil servants, we take an oath of office by which we swear to support and defend the Constitution of the United States of America. The Constitution not only establishes our system of government, it actually defines the work role for Federal employees – “to establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.”…
I don’t know about anybody else, but I don’t feel tranquil, my general welfare, under this administration, has been questionable, to me, for a while now, and as to liberty, “blessed” is not the descriptive most people are using these days.
The rest of the categories are just good wise-crackin’ material.
The Oath of Office and the Constitution
Oath
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
5 U.S.C. §3331
As Federal civil servants, we take an oath of office by which we swear to support and defend the Constitution of the United States of America. The Constitution not only establishes our system of government, it actually defines the work role for Federal employees – “to establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.”
The history of the Oath for Federal employees can be traced to the Constitution, where Article II includes the specific oath the President takes – to “preserve, protect, and defend the Constitution of the United States.” Article VI requires an oath by all other government officials from all three branches, the military, and the States. It simply states that they “shall be bound by oath of affirmation to support the Constitution.” The very first law passed by the very first Congress implemented Article VI by setting out this simple oath in law: “I do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.”
The wording we use today as Executive Branch employees is now set out in chapter 33 of title 5, United States Code. The wording dates to the Civil War and what was called the Ironclad Test Oath. Starting in 1862, Congress required a two-part oath. The first part, referred to as a “background check,” affirmed that you were not supporting and had not supported the Confederacy. The second part addressed future performance, that is, what you would swear to do in the future. It established a clear, publicly sworn accountability. In 1873, Congress dropped the first part of the Ironclad Test Oath, and in 1884 adopted the wording we use today.
*Deaf and hard of hearing users should contact us using the the Federal Relay Service.
[Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.]
Yoo did not play a sympathetic role in those years and the memos he wrote while at the OLC were examples of giving the patina of legality to horrific practices.
That said, this suit by the NLP folks will not likely succeed on several counts (in my completely untutored opinion) and Professor Turley is right.
It could be, however; it could be that this is an opening gun in an involved legal strategy designed to get Executive officials to the witness chair in some other forum.
Someone who knows the relevant law, please advice me: if the OVP instructed Yoo (whilst the latter was the DAAG at OLC) to write a memorandum reaching a determined result which result was to counsel criminal actions, then Yoo dutifully produced such a memorandum with such a result and transmitted it to POTUS and POTUS then acted on the memorandum….would Yoo then still enjoy immunity, qualified or otherwise?
Can’t sue the government – without permission.
I think the lawsuit is just a symbolic gesture. But I wonder why they filed the lawsuit against one individual when he merely provided his views on the matters related to the constitution for the government. Shouldn’t the government named as a defendant in this case?
This is one of many episodes in the complex deconstruction of our Republic; and my personal preference is that whatever free market exists in the pursuit of an education – sends both Yoo and Dinh fleeing from academia and lands them in one of the predatory law firms that abuse tax payers, or rather, delinquent tax payers.
Pardon my vitriol, but these are men using position, as it were, and willingly and knowlingly compromise truth for promise of higher position or membership. If ever our First Amendment rights are restored and true investigative journalists can practice their craft without fear of being snatched via the Congressionally induced persistent vegetative state of habeas corpus, we’re certain to learn a great deal about the motives of these and similar jurists. Book deals alone of become the common and modern version of ‘payola’. It’s in plain sight, its done everyday and many roads point to the same two neoconservative turbines – Heritage – Enterprise.
Yoo and Dinh represent the same kind of scheme as the privately funded counter-logic scientists that produced incredibly weak, but voluminous reports aimed creating a controversy about global warming. In this particular case, it is my opinion, the jurists are shilling for the same demolition team that won’t be pleased until our Constitution is the equivalent of the Dead Sea Scrolls. In this way we can refer to a grand time and actually have proof that it existed, although the details of the diversity and free society must be viewed in a glass case like a nice old pretty rock.