Judge Receptive to Padilla Lawsuit Against John Yoo

Even with the Obama Justice Department on the side of John Yoo, the former Bush administration deputy assistant attorney general at the Office of Legal Counsel, a federal judge hearing former enemy combatant Jose Padilla’s lawsuit against Yoo on Friday seemed wary of dismissing the case, The New York Times reports.

The Obama administration is now in the odd position of defending Yoo, who made the legal arguments justifying such extreme interrogation methods as waterboarding, or simulated drowning, a well-known form of torture. Padilla, an American citizen, claims he was subjected to those techniques during his more than three years held in isolation without charge or trial at a U.S. military brig. (He was eventually transferred to civilian custody and tried in federal court, convicted in 2007 on terrorism-related charges.) Represented by a Yale Law School clinic, Padilla and his mother are now suing Yoo for being responsible for the treatment he endured as an “enemy combatant”.

The Times reports that U.S. District Court Judge Jeffrey White in San Francisco, appointed by President George W. Bush, seemed skeptical of the government’s argument that the case should be dismissed because Yoo is immune from suit and his actions could not be directly connected to Padilla’s treatment, noting that Yoo’s 2001 memo for the Office of Legal Counsel deciding that the president can override the Fourth Amendment’s protection against unreasonable searches and seizures was “a pretty scary position.”

Padilla was convicted in 2007 on terrorism-related conspiracy charges. In his lawsuit against Yoo, Padilla claims that the torture memorandums were directly responsible for his detention, interrogation and torture.

Interestingly, Padilla is not seeking large monetary damages for his treatment:  he’s asking for only $1. What he really wants, his lawyers say, is a declaration from the government that his incarceration and harsh treatment were wrong.

“Plaintiffs seek to vindicate their constitutional rights,” the complaint stated, “and ensure that neither Mr. Padilla nor any other person is treated this way in the future.”

Because President Obama has not said whether he would support either prosecutions of Bush officials or a truth commission, and proposals for investigatory commissions  have so far not won a majority of supporters in Congress, such private lawsuits function as an alternative means of getting at the truth of how torture came to be justified as official policy, and of obtaining some acknowledgment of government wrongdoing for the victims.

After Friday’s hearing, one of Padilla’s lawyers, Hope Metcalf, told The Times: “We were very encouraged by the court’s questions.”