Judge Rules that Jose Padilla Can Sue John Yoo

180px-john-yooJosé_Padilla U.S. District Judge Jeffrey White has cleared the way for Jose Padilla to sue University of California Professor John Yoo for the violation of his rights due to his physical abuse as a detainee. It is a relatively novel ruling that holds that government lawyers must be treated as other officials in participating in illegal programs or policies.

Padilla is currently serving time for supporting terrorists and conspiring to commit murder. He argued that Yoo’s memos violated Geneva Convention bans on physical abuse. Judge White held that “[l]ike any other government official, government lawyers are responsible for the foreseeable consequences of their conduct. The specific designation as an enemy combatant does not automatically eviscerate all of the constitutional protections afforded to a citizen of the United States.”

The Court granted dismissal of that part of the complaint that alleged violations of the privilege against self-incrimination. However, Padilla is given leave to file a new amended complaint to add the needed factual basis for the dismissed claim.

Despite the continued refusal of the Obama Administration to investigate the alleged war crimes of Bush administration in its torture program, Judge White found no ambiguity in the law or their meaning:

First, the basic facts alleged in the complaint clearly violate the rights afforded to citizens held in the prison context. The complaint alleges that military agents entered a civilian jail, seized a citizen from the civilian justice system, transported him to a military brig, detained him there indefinitely without criminal charge or conviction, deprived him of contact with anyone, including attorneys or family, removed the basic ability to practice his religion, and subjected him to a program of extreme interrogations, sensory deprivation and punishment over a period of three years and eight months. The specific designation as an enemy combatant does not automatically eviscerate all of the constitutional protections afforded to a citizen of the United States. See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“officials can still be on notice that their conduct violates established law even in novel factual circumstances”); Phillips, 477 F.3d at 1079-1080 (holding that the fact that no case has found a constitutional violation under the exact facts alleged does not imply that the law is not clearly established); Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001) (holding that a right can be clearly established on the basis of common sense in the absence of precedent directly on point).

The case is Padilla v. Yoo, 08-00035, U.S. District Court, Northern District of California (San Francisco).

For a copy of the amended complaint, click here.

For a copy of the opinion, click here.

For the full story, click here and here

35 thoughts on “Judge Rules that Jose Padilla Can Sue John Yoo”

  1. Jill:

    In this inquiry, it will not be a question of innocence, but rather one of legal discretion.

    With all the political pressure here, that may bring it along some judicially, that is why it is amazing that this case went beyond preliminary dismissal “failure to state a claim to which relief may be granted”.

  2. Gary,

    This issue about “innocently” given advice on the legality of war crimes is addressed in detail and up front in the film: “Torturing Democracy”. It has also been addressed by a group of legal scholars whose opinions can be found on AfterDowningStreet.org.

    Yoo may not claim immunity.

  3. Your story concerns attorneys engaged in private practice, that right there excludes a claim of qualified immunity, which is meant to protect government actors.

    Additionally, in your example it appears to have a colorable claim of factual fraud, not a matter of discretion.
    Yoo may have been mistaken in his legal analysis, but that is a matter of legal argument, not a misrepresentation of provable facts – and even then he still might have QI, if his bad facts were mixed with discretionary legal opinion.

  4. For your officer example, the officer would not be protected by QI because nowhere in his job description is he authorized to torture, rape, or kill, particularly if the person is compliant or non-violent.
    An officer could be immune if he did those things incidental to performing his duties, e.g., he lifted the arrestee in order to transport him, and hurt him somehow, the arrestee claiming torture, the officer would have QI.

    Likewise, the job description of Yoo, was to provide legal counsel to the White House. If he provided legal counsel, even if that legal counsel was based upon improper legal reasoning, then he would have qualified immunity for that counsel.

  5. Thanks for the reply but I am still confused. If Yoo, in the course of his duties, knowingly acted illegally (that is, if it is established he willfully and in bad faith -CYA?- wrote opinions misconstruing the law) would he still be safe from prosecution?

    In other words, if a police officer, while arresting a non-violent individual decides to torture, rape and kill that person, can said police officer claim immunity merely because he was making an arrest which is part of his job description?

  6. My first instinct is that Yoo is protected by qualified immunity.
    QI protects govt employees from suit where their actions were pursuant to an integral part of their job function.
    Yoo was an agency’s counsel, and he issued a legal analysis on the “enhanced interrogation” techniques. Definitely a part of his job, and presumptively covered by qualified immunity.

    The funny thing here is though, the defense of QI is usually raised in the very preliminary proceedings, under 12(b)(7) FRCvP.
    For the judge here to have ruled the case could go forward, he would have apparently seen, and ruled on that immunity, which is similar under Bivens or the FTCA.
    So the case may go forward, unless the defense can petition for an interlocutory appellate decision, and go to trial, and most likely be reversed on appeal.

    I certainly hope not, but the law seems rather clear.

  7. PPS.

    Sotomayer will most likely be on the Supreme Court if the Yoo case gets there, and I expect her to take the same position she did in the case cited above.

    In other words to the right of Souter.

    But she could have felt constrained by 2nd Circuit case law, which she will not be constrained by as a Justice.

  8. P.S.

    The Yoo case is in a San Francisco federal court and on appeal will be in the 9th Circuit Court of Appeals, whereas, the Sotomayer (Fitzgerald) case was in the 2nd Circuit Court of Appeals.

    9th Circuit panels in these scenarios have sided a bit more with plaintiffs than the Sotomayer panel did IMO.

    That means a Supreme Court petition sometime in the future if the 9th Circuit upholds the District Court (assuming the District Court rules the same way at the summary judgment phase, which may not be the case).

  9. F. D. Roosevelt knew how to handle prisoners and spies and citizens. I should think the left would be enamoured of that model.

  10. Buddha Is Laughing,

    Good points.

    Procedurally the Yoo case was in a Rule 12(b) motion posture, and the Sotomayer (Fitzgerald) case was a Rule 55 summary judgment posture.

    Big Difference.

    I am in total agreement that Yoo should be liable, as well as the others who did what he did.

    I also feel that Fitzgerald and the other DOJ and F.B.I. fellows should also not have qualified immunity in the Sotomayer case because the First Amendment was clear then that government cannot suppress the press because they do not like the content of the speech.

    My statements above predict what will happen to the case in the summary judgment phase, and then the case on appeal.

  11. Jill wrote: What is wrong with this picture? Everything. To those who believe they are safe from unjust governmental authority because they are citizens, think again.

    And I will add this:

    If you think that you are “safe from unjust government authority” because you are law-abiding, patriotic and a good citizen, “think again.”

    Information on ordinary citizens is being stored in a governmental database known as “Main Core.” Refer to the “Democracy Now!” interview of Tim Shorrock by Amy Goodman on July 25th, 2008.

    Over the past eight years, the surveillance of ordinary citizens has been stepped up to a point that would challenge the assumptions of most, if known. Good, solid Americans are being targeted and the targeting goes way beyond ordinary surveillance.

    We need a few more whistleblowers to get this thing out into the open. Thank God for Thomas Tamm (and others like him). He got the ball rolling. Someone else needs to get “the whole truth” out into the open.

  12. Mike A.,

    I would be interested to hear your opinion of the legal issue raised by Dredd above.

  13. Dredd,

    Nice catch, but clearly settled isn’t the issue here. Waterboarding is without question a violation of Federal law and international treaty. It’s a topic well covered here. If you are using this case as a lynch pin, what it will come down to arguing a reasonableness standard because a “reasonable official in the defendants’ circumstances would necessarily have understood that his or her actions were unlawful.” That’s going to be a hard row to hoe for Yoo given what he advocated was made with the special knowledge of a trained professional, advised action that is prima facie illegal by the terms of the Constitution and illegal by statute in effect at the time Yoo rendered his cover, er, um, opinion. Unless Yoo has an iron clad way to avoid that, he could be in trouble intent regardless. Were not talking about the nebulosity of free speech in the case against Yoo but rather the black and white world of torture is prohibited – period. You cease to be the good guys when you torture. That being said, given the recent huge sucking sound coming from the Obama administration, I suspect he’ll get a walk. There is the possibility Yoo is the goat to keep the angry citizens from wanting Cheney, but we’ll have to see how it plays out.

  14. First Padilla is announced A DIRTY BOMBER by Ashcroft from Moscow. Next we have the sauve Mr. Wolfowitz on the case: “Under the laws of war, Padilla’s activities and his association with al Qaeda make him an enemy combatant,” said Deputy Defense Secretary Paul Wolfowitz. “For this reason, Jose Padilla has been turned over to the Department of Defense.” The Pentagon and Ashcroft determine that Padilla is an “enemy combatant and…”can be held “at least until the end of the war” without the right to an attorney, said Army Col. Rivers Johnson, a Pentagon spokesman.”

    Most significantly: “In October 2008, 91 pages of memos drafted in 2002 by officers at the Naval Consolidated Brig, Charleston became public.[12][13] The memos indicate that officers were concerned that the isolation and lack of stimuli were causing fellow prisoner Yasser Hamdi mental anguish at one point. The memos also state that Padilla and a third prisoner, Ali Saleh Kahlah al-Marri, were held in similar conditions at the Brig.” (wikipedia)

    What is wrong with this picture? Everything. To those who believe they are safe from unjust governmental authority because they are citizens, think again. Citizenship did not protect Padilla pick up and torture by our own govt.

    Once a person has been tortured, (and the evidence that Padilla was tortured is ironclad), then no charges may rely on any evidence given by anyone who was tortured. There is no cleaning up testimony after torture. It should not be admissible.

    Further, Yoo and his fellow lawyers in the Bush administration knew full well that Padilla was being tortured and how it was being done. Yoo’s own memos both approve torture and specific acts that he found acceptable to use on Padilla and others. Yoo was confronted on his legal “reasoning” by military lawyers, whom he dismissed as raising meaningless objections. So claims that everyone in the executive branch was on board with torture are a lie.

    The fact that Obama’s DOJ is justifying/affirming the actions of the Bush adminstration is morally and legally depraved. The US has been and continues to engage in systemic acts of torture, which we continue to justify “legally”. This is evil and as citizens we should be up in arms. The ACLU has a group of actions to take to hold those who committed torture accountable. It’s at their website: aclu.org.

  15. “Yoo will eventually win via either the defense of the absolute immunity or the qualified immunity doctrine. Probably the latter.”

    Not if his actions are beyond what reasonably falls within his duties. If he however acted/opined in an unreasonable manner (that is, way beyond the fringe of what is considered standard legal procedure/precedent) I wonder if he can hide behind any kind of immunity.

  16. “The federal judge, a Bush appointee, wrote that Padilla could be able to prove that Yoo deprived his constitutional rights by writing the memos. This marks the first time a government lawyer could be held liable for detainee abuse.”

  17. You heard it here yesterday and now wait for the Texas District Court Judge that lost his licenses (Drivers license and Bar Card for 17 months) for another Drunk Driving. He is still sitting on the bench.

    The Fools in Charge are saying that he does not have to resign. The reasoning: When he was elected he was a licensed attorney so he can sit until he has to rerun. He has to rerun in 2010 hoping that he can get his license back by then.

    selection criteria:

    Requirements: A district judge must be a citizen of the United States and of Texas, be licensed to practice law in Texas, and have been a practicing lawyer or a judge for four years before election.

    So the question comes down to can a non licensed attorney sit on a case when they do not meet the minimum qualifications to obtain the office.

    I am sorry, I feel that If he lost his license he should resign from office. His Problem, Alcohol on and off the bench,

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