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The Washington Independent
The Washington Independent

Decision Allowing Yoo Lawsuit to Continue Carries Narrow Implications

Other judges will not be bound by the decision, but there are reasons for advocates to be hopeful.

Jaya Mckeown
Last updated: Jul 31, 2020 | Jun 16, 2009

Image has not been found. URL: /wp-content/uploads/2009/06/padilla_at_court.jpgJose Padilla is escorted into a Florida courtroom in 2007 (Photo: Florida Southern District Court)

Since U.S. District Judge Jeffrey White ruled late Friday in San Francisco that former “enemy combatant” Jose Padilla can proceed with his lawsuit against “torture memo” author John Yoo, the decision has been interpreted by many in the media as a broad vindication of detainees’ rights to sue former Bush administration officials.

In fact, the ruling’s implications are narrower than that, and could also be appealed. But, still, the opinion has heartened some civil rights lawyers because it rejects many of the claims made by former Bush officials that they’re not liable for their actions formulating policy in the “war on terror.” That could persuade judges hearing other claims against former officials as well. The ruling also allows the civil case to move forward against John Yoo, and could in the process reveal significant new information not only about Yoo, but about his interaction with the White House, and exactly how he reached the legal conclusions that he did. That information could, in turn, be used against him in future criminal or congressional proceedings.

Illustration by: Matt Mahurin
Illustration by: Matt Mahurin

But Padilla’s situation was highly unusual, which is one reason the decision’s implications are limited. A U.S. citizen arrested in Chicago in 2002, he was declared an enemy combatant by President George W. Bush and held in a U.S. military prison in South Carolina without charge for the next three and a half years. He claims that while there, he was subjected to a range of harsh and arguably illegal interrogation techniques, such as sleep deprivation, exposure to extreme hot and cold temperatures, threats to torture and to kill him, stress positions, and more. (Padilla was eventually transferred to civilian custody and tried in federal court on criminal conspiracy charges and sentenced to 17 years in prison.) Represented by private lawyers working with a Yale Law School clinic, Padilla and his mother are now suing Yoo, among others, for orchestrating the policies that led to his treatment by U.S. officials. (Padilla has a similar case pending in South Carolina against former Attorney General John Ashcroft and former Defense Secretary Donald Rumsfeld.)

Unlike Padilla, most of the hundreds of other detainees deemed “enemy combatants” by the Bush administration were foreign nationals captured abroad and imprisoned at Guantanamo Bay, which at least technically is not U.S. soil. Judge White acknowledges that those detainees will have a harder time suing government officials. In his opinion, he cites the U.S. Circuit Court of Appeals for Washington, D.C.’s ruling in In re Iraq and Afghanistan Detainees Litigation (pdf), where the court held that “foreign citizens detained abroad” could not sue “for deprivation of their constitutional rights.” A judge-created remedy, the court reasoned, “would invite enemies to use our own federal courts to obstruct the Armed Forces’ ability to act decisively and without hesitation in defense of our liberty and national interests” and would risk “aiding our enemies” by giving them a means of learning information about U.S. military affairs.

That’s not relevant to Padilla, who was a Brooklyn-born U.S. citizen detained in South Carolina.

Still, several points Judge White made in the decision do bear on other cases, and although not binding on other courts, could be persuasive. Most importantly, Judge White rejected Yoo’s claim that he is entitled to immunity from lawsuits because the right of an “enemy combatant” not to be tortured and abused by U.S. authorities was not clear at the time. Former Bush administration officials have repeatedly made similar claims in other cases, often with success.

“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.

“My own feeling is that the qualified immunity section of his opinion could be read broadly,” said Jonathan Freiman, a lawyer representing Padilla in the case, who was pleased with Friday’s decision.

Ruthann Robson, a constitutional law professor at the City University of New York and contributor to Constitutional Law Prof Blog, agreed that “getting past the qualified immunity argument was a big hurdle for the plaintiff.”

Yoo also claimed that he can’t be sued because the connection between his writing legal memos that justified brutal interrogation tactics and any actual tactics used on Padilla is too tenuous. Judge White rejected that argument as well. “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct,” wrote Judge White, who was appointed to the court by 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, he found, which could bode well for other plaintiffs. The legal complaint also specifically charges that Yoo helped develop the government’s policy in the “war on terror”, and specifically recommended that the government designate Jose Padilla as an “enemy combatant.” Judge White wrote that if that turns out to be true (the facts alleged are assumed true at this stage of the case), then Yoo could be legally liable for Padilla’s treatment.

Interestingly, one important factor that the court found weighed 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. Habeas corpus proceedings in federal court, for example, were not sufficient because they don’t provide a remedy against the individual federal officials who developed the challenged policies. The fact that the U.S. government has not developed an alternative means of compensating people who were tortured, mistreated or wrongly deemed “enemy combatants” also weighed in Padilla’s favor.

Interestingly, the fact that the U.S. government has no current plans to prosecute anyone for developing and carrying out illegal policies under the previous administration also helped Padilla. 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.”

“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 Freiman, Padilla’s lawyer.

Indeed, the part of the opinion that seemed to most hearten constitutional lawyers was the court’s refusal to allow Yoo to shield the writing of his memos from judicial review.

The court noted what it called “the irony” of Yoo’s position, that “Yoo drafted legal cover to shield review of the conduct of federal officials” and now argues to the court “that the very drafting itself should be shielded from judicial review.”

As Warren describes it, Judge White’s ruling means that legal memos like Yoo’s “should not be a defense for people who are implicated in torture and abuse that they should have known was wrong.”

That could have implications for some of the cases that have been brought against Yoo in Europe, said Warren. A case is pending against Yoo in Spain, and CCR has filed a case in Germany under the theory of “universal jurisdiction” for human rights abuses. The judge is saying that “the mere writing of these memos can’t shield the writer,” said Warren.

John Yoo, for his part, has consistently maintained that the San Francisco lawsuit is an abuse of the civil justice system. As he wrote last year about the case in The Wall Street Journal: “The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.”

Jaya Mckeown | Jaya moved to Boston from New York to pursue a master's degree in corporate communications at Emerson College. This experience, combined with her undergraduate degree in psychology and teaching, has equipped her with valuable skills that she employs on a daily basis in real estate negotiations, homebuyer and seller education, and successful promotion of the team's listings. Jaya's clients often characterize her as meticulous, proactive, and enjoyable to be around.


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