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.
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