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Judge: Ex-Bush Lawyer Can be Sued Over Torture
A prisoner who says he was tortured while being held for nearly four years as a suspected terrorist can sue former Bush administration lawyer John Yoo for coming up with the legal theories that justified his alleged treatment, a federal judge in San Francisco ruled Friday.
U.S. District Judge Jeffrey White's decision marks the first time a government lawyer has been held potentially responsible for the abuse of detainees.
"Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct," White said in refusing to dismiss Jose Padilla's lawsuit against Yoo.
If Padilla, now serving a 17-year prison sentence on terrorism charges, can prove his allegations, he can show that Yoo "set in motion a series of events that resulted in the deprivation of Padilla's constitutional rights," White said.
White, an appointee of former President George W. Bush, noted that Padilla's lawsuit accuses Yoo of helping to design administration policy on detention and torture, and then crafting legal opinions to justify it - stepping outside the usual role of a lawyer.
Yoo, a UC Berkeley law professor, was an attorney in the Justice Department's Office of Legal Counsel from 2001 to 2003 and wrote a series of memos on interrogation, detention and presidential powers.
The best-known memo, written to then-White House Counsel Alberto Gonzales in 2002, said rough treatment of captives amounted to torture only if it caused the same level of pain as "organ failure, impairment of bodily function or even death." The memo also said the president may have the constitutional power to authorize torture of enemy combatants.
'Any means necessary'
A 2001 Yoo memo, made public by the Obama administration, said U.S. military forces could use "any means necessary" to seize and hold terror suspects in the United States.
Yoo could not be reached at his Berkeley office Friday. A spokesman for the Justice Department, which is representing him and has argued for dismissal of the suit, was unavailable for comment.
Padilla's lawyers issued a statement saying they are "pleased that our client will get his day in court and the right to challenge the unconstitutional conduct to which he was subjected."
Unique ruling
John Eastman, law school dean at Chapman University in Orange County, where Yoo taught for the past year, said the ruling is unique - the first to hold any administration official potentially liable for alleged mistreatment of terrorist suspects.
Eastman predicted that the Justice Department will file an immediate appeal, going to the Supreme Court if necessary. Padilla, a U.S. citizen, was arrested in Chicago in 2002 and accused by the Bush administration of plotting with al Qaeda to detonate a radioactive "dirty bomb."
Declared an enemy combatant, Padilla was held in a Navy brig for three years and eight months and was denied all contact with the outside world for the first half of that period, his suit said. He was then taken out of the brig and charged with taking part in an unrelated conspiracy to provide money and supplies to Islamic extremist groups. He was convicted and has appealed.
His suit against Yoo covers his time in the brig. He says he was detained illegally, held for lengthy periods in darkness and blinding light, subjected to temperature extremes and sleep deprivation, confined in painful stress positions, and threatened with death to himself, harm to his family and transfer to a nation where he would be tortured.
Claims of mistreatment
The suit said Yoo - who has acknowledged being a member of an administration planning group known as the "war council" - personally reviewed and approved Padilla's detention in the brig and provided the legal cover for his treatment.
At a hearing in March, Justice Department lawyer Mary Mason told White that courts had no power to scrutinize high-level government decision-making, especially in wartime.
But White said Friday that Padilla had a right to sue "the alleged architect of the government policy" on enemy combatants. He said an examination of Yoo's publicly disclosed writings would not damage national security, and an inquiry into "allegations of unconstitutional treatment of an American citizen on American soil" would not affect foreign relations.
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Show AllHip Hip Hooray!
Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States (1928): "In a government of law, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy."
Brandeis is right on!
In this case, good for Judge White. It is possible that the Judiciary could save the republic. Is it likely?
It is highly unlikely. As the appeal process winds its way up the ladder of "American justice" it will finally meet the Establishment**, whose reason for being is to protect the class interests of the ruling elite. The Judiciary is just another arm of the capitalist state apparatus and it will always rule in favor of the class interests of the ruling class against the interests of your so-called "republic". In other words, don't depend on the capitalist state to save your republic. Your republic will need to be placed under true democratic control by the people, if it hopes to survive in the interests of the people.
** "Establishment" is a word from the '60s when many of us saw clearly that the role of the capitalist state was to perpetuate the hegemony of the corporate interests over the people.
FWIW, I had no compunctions about resurrecting the term "Establishment" from the archives of my personal lexicon.
It more or less forced itself upon me! I don't remember the specific comment I was writing some months ago, but I was struggling for a COMPREHENSIVE term for the interlinked and incestuous political, financial, and academic Powers that Be... and then, Eureka! The Establishment!
It's BACK! (Just kidding; it never left.)
· Yr Obd't Servant
Struggle June 13th, 2009 10:10 am, the next stop if this is appealed is the Ninth Circuit Court, which has been generally liberal. If it does go to the SC, it's a toss up, but I wouldn't bet it will get there. Yoo and his backers may be willing to settle rather than risk a larger damage settlement following an SC ruling and the attendant bad publicity. The clock is ticking on Yoo's career -- how long until Berkeley dumps this festering pustule?
These days, it's refreshing that a district court judge would still side with the rule of law. Too bad that the decision will be appealed to a court that doesn't care about "quaint" concepts like that.
That's probably how it will turn out . . . after the Obysmal DOJ pressures the appeals judge to reverse the decision or get his backside in an enormous sling, maybe with the IRS, who can hassle you for years and years and years. Or perhaps the judge will find a bullet under his pillow.
The exceedingly slow wheels of justice just moved forward a bit with this development. The trick is to keep them moving forward.
Not a rebuttal to your post, at all, but I wonder if this is really a step forward. When our lawmakers create, propose, and enact laws that end up hurting people do we hold them solely responsible? I see this cat as a scapegoat for the Bush administration just like Libby was a scapegoat. It's a lateral move at best, but you're right- at least its a move.
My guess is, the administration asked him to search the law and MAKE what they wanted to do legal. To find the loopholes and the obscurities that let them do as they wish. Of course, on a moral level, its good to see people like him held accountable. But should he be the ONE held accountable?
momerath June 13th, 2009 2:11 pm, it could be a first step in holding all of them accountable. If Yoo admits guilt, or is found guilty, that opens the door to prosecutions of Cheney, Addington, Bybee and the others who approved denying Padilla his rights and sets up this constitutional case: By what act of Congress did the Bush Administration refuse the fourth, fifth and sixth amendment rights of a US citizen who was not picked up on a foreign battlefield but in an airport in Chicago? In fact, there was no such act of Congress permitting this, which would have required a constitutional amendment, so this lays the legal foundation for other prosecutions that AG Holder can hardly ignore.
Let's not forget that the impeachment of Nixon was out of the question when the Watergate hearings began, as well as the prosecution and conviction of any of his senior staff. True, these are different times, but when a Bush-appointee like this judge is ruling against a member of the White House Inner Sanctum, it's a tip-off that things have changed.
A little more support for this judge and a whole lot less tired cynicism from this thread would be in order.
To echo Struggle's comment, what immediately came to my mind is that the Obama/Holder DOJ will surely weigh in to support Yoo and his fellow war criminals by any means necessary.
The present Unitary Executive is every bit as obscenely heinous in "Homeland Security" matters as his depraved predecessor.
· Yr Obd't Servant
hey Padilla, go for it. Take Yoo to the cleaners.
If Depleted Uranium (DU) munitions are not dirty bombs, and 37 kiloton Dirty Harry of the 1953 Upshot-Knothole series was not hazardous as according to DOE, DOD, and DOH, a "dirty bomb" is just a PR creation, not even worthy of a Science Fiction hack. Can you imagine Padilla arranging delivery of 37,000 tons of TNT to some location? How many 18 wheelers would he need?
Good point, Downwinder June 13th, 2009 2:02 pm. Padilla was arrested with $10K in cash and a 'dirty bomb' recipe sketched out on a napkin that wouldn't have worked even if he had been capable of building it, which he was not. It should be noted that he wasn't convicted of any of the initial charges against him, but tenuous connections to other criminal plots. An ongoing trial and the subsequent revelations thereof that might exculpate Padilla in the convictions keeping him in jail -- for example, the Bush Administration using illegally-obtained evidence against him -- would be reason enough for Yoo and his lawyers not to want to take this too far. What if it developed that Yoo himself was involved with approving the use of illegal evidence or suborning perjury?
Yoo will be told to 'bite the bullet' on this, as Lewis Libby was, but I don't think it will stop there -- unless, of course, Pat Fitzgerald is named the prosecutor, the man who couldn't find out who leaked Plame's identity because he was too 'confused' by Libby's perjury and obstruction of justice. Let's just say that Mr. Fitzgerald has a convenient set of blinders he wears when a politically-charged case comes his way.
Cicero: "Freedom is participation in power."
I was wondering how U.S. citizen Padillo's family would respond to the anti-Constitutional outrages perpetrated against him. His case looked like a clear-cut Stalinist show trial/railroad to me. I never read any description of clear evidence against him that couldn't have been made up by drunken frat boys.
This American citizen's case is probably the single most important legal case of our time. If he has no rights here--none of us do.
Some unanswered questions:
1. Are we sure only Yoo was sued? Sounds like he's the one that made it to this stage of the case first.
2. Please note that this case is civil, not criminal, although there are criminal overtones. Is Padilla seeking any relief other than damages, such as withdrawing of Yoo's law license?
3. Who are the attorneys representing Yoo? Are they in it for the money or for the principle?
4. How does the Justice Department end up representing Yoo in this case? Isn't there a potential conflict of interest, since DOJ seems likely to be called upon eventually for action related to criminal prosecution of Yoo? Did Padilla's attorneys challenge the representation?
manning120 June 13th, 2009 5:05 pm, good questions. I'm not a lawyer, but I'll try to briefly answer some of them:
1. I read that others in the Bush Administration are being sued as well. I don't know the current status of the lawsuits, though.
2. If Yoo loses, he'll also automatically lose his license to practice law, as far as I know.
3. I'd bet the money. Yoo himself is not wealthy, so the money defending him is coming from elsewhere.
4. It's not clear that the DOJ will represent Yoo in this case if it goes forward, and it would set up a potential conflict of interest. As far as I know, the DOJ is not obligated to defend past employees in civil suits related to criminal malfeasance in the performance of their duties.
Perhaps others in this thread will have more detailed info.
Some of the questions are answered in the NYT today: http://www.nytimes.com/2009/06/14/us/politics/14yoo.html?ref=global-home. The legal representation for Padilla includes attorney Tahlia Townsend and students from Yale Law School’s international human rights clinic. Padilla and his mother want $1 in damages (that's $1.00), according to the Times, plus a declaration by the court that his treatment was unconstitutional. The article doesn't discuss the conflict of interest question or the effect of losing the case on Yoo's license.
Thanks for that NYT link, manning120 June 13th, 2009 8:53 pm. I think things got a little confused here -- in item 3 you asked about Yoo's attorneys, not Padilla's.
But that's good to know that Padilla is apparently getting good legal help.
Go Judge White!
The decider sqirming yet? Getting closer coward! He'll never meet Justice, but the more the word TORTURE is superimposed over the slur 'bush,' the better.
Of course, when cheney/israel attack the US with 9-11 part II, the gop will be back because bo made us unsafe, and man, the torture chambers will be humming!
This time though with Yoo giggling, sweating, and torturing the Arabs himself!
Too little too late. We're goners. Embrace spirit.
Like most of you, I think that Obama will intervene to protect torturers and murderers. Considering his support of DOMA, contrary to campaign promises, it's odd that a man who feels that existing law must be enforced no matter what with with regard to gay marriage, but the Conventions on Torturer are optional; he has no problem violating the Convention's affirmative duty to prosecute.
It would be nice if, starting with the roots, a way could be found to eventually get the Bush too, but it's unlikely. Laws only apply to little people, and unpeople (such as Muslims) get no protection.
congress will not throw themselves under the bus. to den haag is the only answer.
John Yoo is a disgrace to humanity. Suing him is small compensation for the misery and degradation he has enabled.
Did you know that the USA government has site up a internal gulag in the various states for the interment of US citizens?
Go here:
"Fearful of American citizens, the US government is building concentration camps, apparently all over the country. According to news reports, a $385 million US government contract was given by the Bush/Cheney Regime to Cheney’s company, Halliburton, to build “detention centers” in the US. The corporate media never explained for whom the detention centers are intended."
http://www.counterpunch.org/roberts06102009.html
hoytdouglas June 14th, 2009 9:21 am, those camps were purportedly built by BushCo to contain undocumented workers arrested by the INS. Is there any evidence that Obama is continuing to build or staff and maintain them?
(He said an examination of Yoo's publicly disclosed writings would not damage national security, and an inquiry into "allegations of unconstitutional treatment of an American citizen on American soil" would not affect foreign relations.)
I am sure it will affect foreign relations, but to the better. We need to pursue indictments against all the international war criminals in our midst, then the healing may begin.
The Padilla case is especially important in that the arrest was one of the most publicized cases the past administration used to continue the high level of fear among us to continue their obscene march, using a "foreign influenced" terrorist, right in our backyard, with potential for a dirty bomb no less. Missed by most citizenry is the fact that he is an US citizen and the original charges were never proven in a court of law, they were dismissed.
Not that a US citizen cannot be a terrorist, as recent shooting events have shown.
What is significant is that this case obviously stands a chance in court, yet there have been no federal convictions for any of the manipulations of the federal government that called on this age of torture.
And then the Bushes shrugged and everybody went about their business until the ice age hit as the nuclear warfare began and then ended real quick at this tail end of fossil fuel industrial surge and wouldn't Yoo know it, Yoo found total justice after all. But Billions perish loading the scales monstrously.