Padilla versus Yoo

José Padilla—who this past August was convicted of terrorism conspiracy—and John Yoo, one of, if not the, legal architect of the U.S. response to 9/11—have become near-household names in the fights over U.S. detention policies in the so-called “Global War on Terror.” Today, that fight took on a much more personal character, as Padilla (and his mother) sued John Yoo—and only John Yoo—in a suit brought in the Northern District of California. A copy of the complaint can be accessed here.

The suit’s allegations are wide-ranging, alleging that Yoo’s legal opinions and personal involvement in issues ranging from Padilla being designated an enemy combatant to his detention and interrogation violated Padilla’s constitutional and statutory rights (e.g., denying him access to counsel and courts; unconstitutionally confining and interrogating him; denying his freedom of religion, association, and right to due process). Interestingly from the Opinio Juris perspective, none of the allegations involve a violation of international law such as the Geneva Conventions or U.S. international human rights obligations. Nevertheless, even if one ignores the suit’s merits (a subject on which I don’t doubt readers may wish to comment), the complaint raises a number of fascinating issues. First, it gives an in-depth account of the nature and conditions of Padilla’s confinement that go beyond what I’d seen publicly available before. For example, there’s an allegation about Padilla continuing to suffer serious harm because of the government’s claim of a right to “re-detain” him as an “enemy combatant” that suggests he’ll always live in fear of being brought back to the Brig (on the other hand, the complaint generally dodges the fact of Padilla’s recent conviction, albeit on different charges than those that generated his original arrest and designation as an enemy combatant).

Second, the evidence on which the complaint is issued suggests that the recent rash of tell-all books about the “Global War on Terror” may be having unforeseen consequences. The complaint, for example, cites Yoo’s own book—War By Other Means—against him as evidence of Yoo’s personal responsibility for the series of OLC opinions and recommendations that led to Padilla being detained as an enemy combatant and the methods employed in his interrogation. Jack Goldsmith’s more recent effort, The Terror Presidency, gets cited more generally for Yoo’s involvement in many of the policies and decisions surrounding Padilla, not to mention Goldsmith’s own critique of Yoo’s memos as “deeply flawed; sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President.” (Complaint, p. 20)

So, what’s the point of all this? Why go after Yoo and not someone higher up the chain (e.g., President Bush who made Padilla’s enemy combatant designation)? Check out the prayer for relief:

This suggests the focus here isn’t about getting Padilla any concrete remedy for his detention and interrogation so much as a judicial rebuke of the policies that led to his confinement. And, by naming Yoo alone, it makes this case less about upending the Executive Branch or Justice Department’s positions, and much more about attacking John Yoo as a lawyer. Indeed, Padilla and his counsel appear to have made a conscious decision to use this suit as a rhetorical tool. Yoo’s assets aren’t the focus of attention here. I suspect, for example, Yoo will argue immunity and get a government-funded lawyer in his defense (although he may well spend some money to retain his own counsel and maybe those costs could add up). And although a judicial rebuke, however unlikely, of Yoo would have undoubted implications for the President and the Executive Branch, the end-game appears to be much more about shaming John Yoo. Indeed, the prayer for relief suggests a remedy that simply declares that John Yoo was wrong, with the attendant effects that might have on his reputation and standing in the academic and legal communities (Whether Yoo is susceptible to such shaming, however, is a separate question. It seems unlikely that he’ll ever be convinced that his views were mistaken on the Geneva Conventions, torture, or the war on terror, and, at this point, I’d be hard pressed to think of someone in the relevant academic or legal communities who hasn’t already made up their mind about John Yoo one way or the other).

More generally, this suit signals how much the role of government lawyers has changed in the last few years. Would you ever have imagined ten or twenty years ago, that a government lawyer (and, at least formally, a mid-level one at that) would become so visible, so central to U.S. policy, that they, rather than the political officials they advised, would be the center of the fight over the propriety of U.S. government policies and actions? Indeed, Goldsmith makes a similar point in his book about over-lawyering the aftermath of 9/11. I wonder, in that sense, if Yoo is an isolated case (a cause-celebre, fall-guy, or war criminal, depending on your perspective), or if this suit represents the beginning of a new era; one where the public’s access to information on government-decision-making allows for much more precise measurements of individual accountability. And, once folks know who was actually running the issue on the ground, will they, rather than their bosses, become the focus of attention? In other words, if Padilla can go after John Yoo, should David Addington or Jim Haynes be worried that they’re next. And, if so, is that a good or bad thing for our government and its lawyers?

[UPDATE: I’m informed by one of our regular readers of an additional possibility for the Padilla suit seeking primarily declaratory relief. Apparently, there’s some Supreme Court precedent that requires a court to decide whether the Constitution was violated before deciding whether the defendant is entitled to immunity. Thus, if the constitutional principle being asserted by Padilla was not clearly established at the time Yoo acted, Yoo will ultimately be immune from damage relief. But before dismissing the complaint, the court is supposed to decide whether he violated the Constitution and thus, as a practical matter, there may be no immunity from declaratory relief. The issue, however, is a bit outside my expertise, so I’d be interested to know whether other readers agree?]

[Update II: Volokh’s got a couple of interesting posts critiquing the merits of the case by Orin Kerr and Jonathan Adler here and here. Meanwhile, another reader has written to point out that, in fact, Padilla’s suit against Yoo is actually a follow-on suit to an earlier one that he and his mother filed last February against a host of government defendants up and down the chain of command, including Rumsfeld, Ashcroft, naval officers in charge of his detention in South Carolina, etc., alleging a similar set of complaints to those made gainst Yoo. On the one hand, that seems to cut against my thesis that this suit might signal a new trend of targeting specific officials, rather than a “name all possible defendants” approach. On the other hand, the fact that Yoo gets his very own suit in Northern California, re-enforces the idea that this most recent suit is as much about attacking John Yoo as it is attacking the government’s treatment of Padilla himself.]