On Friday, I heard from Jonathan Freiman, a constitutional lawyer who represents Jose Padilla in a lawsuit against the government.

By promising to improve its policy for invoking the state secrets privilege, the Obama Justice Department last week announced, with much fanfare, that it will require the attorney general to sign off every time the Justice Department claims “state secrets” trump a victim’s charges. Well, as Freiman points out, that’s what the law has always required, at least in theory. And that hasn’t stopped the government from using the state secrets privilege in the past simply to cover up government wrongdoing.

“Ever since the Supreme Court first recognized it in U.S. v. Reynolds, the doctrine has required that any invocation of the privilege be supported with an affidavit from the head of the relevant government department,” wrote Freiman in an email. “If we expect the A.G. to be more likely than other high government officials to respect law – and less likely to invoke the state secrets privilege just to cover up government wrongdoing – then the new policy is a good thing.”

“But for most of the last decade there wasn’t much reason to put the A.G. on a pedestal above his cabinet peers,” Freiman wrote. Maybe things will change, he said, but “with the administration’s continuing opposition to real checks and balances, it’s possible that we’ll never really know whether they’ve changed.”

That is, of course, the problem with allowing the government to claim “state secrets” to dismiss a case without even letting the judge review the evidence to decide if it’s really a national security concern or not. After all, in the Reynolds case, when the government first claimed the privilege, insisting that release of information about a military plane crash would endanger national security, it turned out the Justice Department was just hiding the military’s own negligence — and denying the widows of the plane crash victims not only compensation, but any opportunity to find out what really happened.

Correction: I mistakenly identified Jonathan Freiman as representing Al Haramain Islamic Foundation in a previous version of this post. He represents Jose Padilla. Jonathan Eisenberg represents Al Haramain. This post has been updated to reflect the correction.

Yoo, of course, is the former Deputy Attorney General in the Office of Legal Counsel and primary author of the so-called “torture memos” – memos that defined torture so narrowly as to approve a broad range of interrogation techniques, at least one of which — waterboarding, or simulated drowning — had been deemed torture repeatedly by the United States in the past.

Padilla claims he was subjected to a range of harsh and arguably illegal interrogation techniques, such as sleep deprivation, exposure to extreme hot and cold temperatures in his prison cell, threats to torture and kill him, stress positions, and much more, during his more than three years held in isolation without charge at a U.S. military brig. (Padilla was eventually transferred to civilian custody and tried in federal court on criminal conspiracy charges. He was sentenced to 17 years in prison.) Represented by a Yale Law School clinic, Padilla and his mother are now suing Yoo, among others, for his treatment by U.S. officials. (A parallel case is pending in the South Carolina against former Attorney General John Ashcroft and Donald Rumsfeld.)

Yoo, represented by the U.S. government because he was sued for his official acts (although whether the Justice Department ought to be representing him is questionable), argued that he is immune from suit because, among other things, it wasn’t clear at the time that the abusing Padilla was unlawful, and because in any event Padilla can’t connect the abusive conditions of his detention to Yoo’s actions writing memos that authorized brutal treatment. Yoo also argued that the court should not review the adequacy of his legal memos, because that’s the role of the executive branch or Congress.

The court rejected that argument, noting that it’s still the role of the courts to judge whether the government met constitutional standards in its treatment of detainees.  The court also denied Yoo’s argument that he is entitle to immunity from suit because Padilla’s rights as an “enemy combatant” were not clear at the time — the same claim Bush officials have made in several other cases. “The Court finds that the complaint alleges conduct that would be unconstitutional if directed at any detainee, and therefore finds that the rights allegedly violated were clearly established at the time of the alleged conduct,” wrote Judge White.

That Yoo only wrote the legal authorization for the abuse and didn’t carry it out himself didn’t help him any with the court. “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct,” wrote Judge White, an appointee of President George W. Bush. That mistreatment would follow from an authoritative legal memo advising the executive branch that those specific acts of abuse were lawful is not a stretch. The legal complaint also specifically charges that Yoo helped develop the government’s policy in the “war on terror”, and specifically sanctioned the treatment of Padilla as an “enemy combatant,” and the court found that if true, that would give rise to Yoo’s liability for Padilla’s treatment.

One factor weighing in favor of Padilla’s right to sue is that the United States had not afforded him an alternative remedy for the abuse he claims he suffered. The court quoted news reports such as one in The New York Times saying that “President Obama has shown little interest in prosecuting officials of the previous administration, and it is not clear whether there will be a government sponsored investigation of Bush administration policies.”

Padilla’s lawyers are thrilled.

“This ruling gives hope that the courts will not shy away from accountability for those who designed and implemented the last administration’s torture policy,” said Jonathan Freiman, lead counsel for Padilla, in an e-mail over the weekend. He added:

The Court noted what it called “the irony” of Yoo’s position: that Padilla alleges “that Yoo drafted legal cover to shield review of the conduct of federal officials” who tortured Padilla, and that Yoo’s response was “that the very drafting itself should be shielded from judicial review.” Even if, as Judge White notes, the political branches may currently lack the will to hold accountable those who were responsbile for the torture policy, the judiciary has the duty not to avert its eyes.