Padilla versus Yoo

by Duncan Hollis

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:

Plaintiffs therefore respectfully request that the Court enter a judgment for all relief to which they are legally entitled under the facts of this case, including but not limited to the following:
a. A judgment declaring that the acts alleged herein are unlawful and violate the Constitution and laws of the United States;
b. Damages in the amount of one dollar;
c. Attorneys’ fees and costs; and

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.]

24 Responses

  1. 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?

    Respectfully, isn’t that the expected result of a line of reasoning that for the past thirty years (at least) has pushed to have legal review of every aspect of war and war-making? I don’t argue that war-making shouldn’t be subject to some basic rules of law (indeed, the Geneva Conventions compel that), but we now have lawyers reviewing (for example) whether it’s ‘lawful’ to take out a particular target, or to shoot at a particular terrorist (insurgent, if you prefer).

    So of course an administration is going to have legions of lawyers like Mr. Yoo, and since the law is varied, and lawyers are opinionated (ahem), one should expect that we’ll have some opinions like his — as well as those completely on the other side.

    If this suit goes forward, the only real guarantee is that the next Democratic president (hey, it could happen) will have additional difficulty obtaining good legal advice on war and war-making. Just as misguided agendas have made it more difficult to recruit good people into government in other areas, we’ll now make it more difficult for good lawyers to want to serve in tough areas of government.

    Is that what we want?

  2. Padilla has committed two capital offenses. Treason is a civilian crime that can be charged in Federal court, and “passing through lines out of uniform” (being a spy) is a military offense that can be charged in a military court. His statements during interrogation provide overwhelming but inadmissible evidence. If he were to give evidence in this case, he could be cross-examined and his answers would then be admissible against him. The constitutional requirement for confession in open court to convict on Treason could be met by such a cross-examination. Padilla cannot take the stand, and since he is the only witness who might support the claims made here, the case cannot enter discovery. There may be some attempt, as in previous cases, to claim that the decision can be made as a matter of law without evidence, but it is unlikely to be successful. Maybe he has lawyers reckless enough to earn one dollar in compensation, and then get their client executed.

  3. You are incorrect that the court will first determine whether there has been a constitutional violation. In fact, the court will first determine whether the allegations as stated in the complaint would violate a clearly established constitutional right. If not, Yoo has immunity and the case is over — even if his conduct violated a constitutional right that was not clearly established.

  4. Steve, I must heartily disagree with your opinion. Lawyers have been accountable for their advice under the laws of war since Nuremberg and United States v. Altstoetter. As Scott Horton, slowly becoming one of my favorite bloggers, helpfully explains, the case stands for the propositions :

    [T]hat lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees.

    You can go rent Judgment at Nuremberg tonight to see a fictionalized account of the Judges Trial.

    Now, maybe it’s a bit scary to confront the fact that members of polite American society, with fancy degrees, Supreme Court clerkships, and cushy tenureships can be war criminals, but indeed they can. And in fact, they can be far more dangerous than 25 year olds from West Virginia, who have actually served prison time for implementing the policies the lawyers from the Ivy League have created.

    I’d also argue that lawyers, quite apart from the laws of war, have an independent ethical obligation when they render advice to uphold the U.S. Constitution and basic tenets of human decency as members of the bar.

  5. Oops, I didn’t even notice that Scott Horton made that point already on his blog at Harper’s yesterday!

  6. 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).

    Actually, I suspect that even if the government doesn’t provide a lawyer, Yoo won’t have to pay a penny because many of the same people who paid Scooter Libby’s defense bills will be happy to pay Yoo’s.

  7. Re the order of analysis in a qualified immunity case: The Court stated in Saucier v. Katz, 533 U.S. 194 (2001):

    A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry. Siegert v. Gilley, 500 U.S. 226, 232 (1991). In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry.

  8. I just worry that if you are a government lawyer asked to give an opinion about international law, you now have to get it cleared with the international legal academy unless you wanted to be deemed a war criminal. Practicing lawyers in this area have often very little precedent to look at, and face a war with even less precedent. Now they face the risk of having to get their opinions cleared by Professor Heller, Marko and Ben Davis … that is scary.

  9. Yes, NSD, I imagine that Kevin, Ben and I really must seem scary. Almost as much as the man who argued that the US President has the legal right to crush a child’s testicles, if he deemed it necessary to prevent terrorism.

    What I find astonishing is that there are people who seem to believe that a legal adviser can NEVER be criminally liable for the advice he has given, no matter how frivolous and ungrounded it is in actual law. It is simply not the case that the ‘international legal academy’ has a difference of opinion with John Yoo on a matter of international law. The fact is that no reasonable, conscientious lawyer acting in good faith could have interpreted the law in the way Yoo did.

  10. It is telling that the polemics surrounding the suit are politically polarized. My impression reading the complaint itself was it is a gentle attempt to cause reexamination of the dual impacts of war constructs without a congress declaration of war formally and executive discretion in the information age to compartmentalize counselor enclaves within an administration, both problems extending back through four prior presidences, and endemic to constitutional democratic government structures in many countries. In other words, the president used aumf to select the most radical view from olc and run with it as better a figleaf than no attempt for a nonlawyer president to seek preconflict attorney-client privileged communication, or, in this instance, preAbuseOfPrisoners advice. Interestingly, international law precedents were repelled by the advisors who oversaw the incentives Yoo researched, but the entire complaint as currently formulated addresses only the US legal status of what is perhaps only one more reflection of the condition which Senator Whitehouse in a famous speech decried as opening a perilous course of politicization of the Department of Justice, during the US attorneys midterm mass firings scandal; i.e., the complaint talks about US law without embarking on the whole morass reflected in another now resigned administration figure’s remark about quaintness of humane treatment of detainees. So, to me, the complaint prays for considered review of compartmentalization, examined from the perspective that the actions the advice in Yoo’s instance underwrote created a new image abroad of US as pariah in the field of human rights in armed conflict, and, indeed, transnational ‘police actions’; reminiscent of the UN police action which, too, was not a classically declared war and was prosecuted by US military as proxy for UN. There have been many permutations of this problem since weapons have grown larger than life in the classical war sense, and the eccentric hostilities prosecuted never were frontally declared wars; consider the war in Cambodia which the US bombed for logistic reasons; the Vietnam war, and the current two covered only by aumf.

  11. Most of the comments seem to be against Yoo and his policies in general. As a result, I think it is important to return to reality and to point out that, no matter what you think about Yoo, Padilla has possibly the worst case against him that one can imagine. He was captured as an enemy soldier by Federal agents who, thanks to a lucky circumstance in Afghanistan, had his al Qaeda military records including his enlistment papers and records from basic training. Then under questioning by the FBI in NY he admitted that he was an al Qaeda soldier who had come to the US on a military mission assigned to him by his commanding officer, and that he was travelling on a ticket payed for out of al Qaeda military operating funds given to him for the purpose of the mission. He was declared to be an enemy combatant because we had his military personnel file and because he said he was an enemy combatant. You don’t need an opinion from Yoo or any other lawyer to make this decsion.

    He was held first by the FBI and then by the military in the main Navy brig in Charleston. There is no evidence that he was ever tortured, or treated in any way incompatible with standard military regulations. If you are going to torture someone, you select the guys who won’t talk. Padilla appears to have been willing from the start to tell interrogators anything they wanted to know.

    There are video recording of nearly his entire detention to prove how he was treated and to document what he said about his military training and mission. [There is apparently one missing DVD for a day 21 months after the start of his detention.]

    The fact that Padilla was not tortured does not change what happened to others who fell into CIA hands. It’s just that if you want to make a point about Yoo, then Padilla is your worst possible client.

  12. Marko,

    Those are easy comments for you to make because, frankly, you have never held a position in your life where such judgments mean anything. You can offer you tidings on a advisory opinion all snug as a bug in a rug at the ICJ knowing full well that if you err on the side of too much deference to human rights vs. security you will have no accountability what so ever. All you need do is write and say what is pleasing to the international legal academy, which you desire to join someday, and your life will take the course you desire.

    No Israeli penalized by your advice in the Wall decision will ever hunt you down with a lawsuit. The Hamas rocket fired into Israel from its safety in a civilian zone thanks to your writings will ever come back to you. The person who could have been saved if the terrorist was tortured will not ask for your time.

    Should you write the other way, if you have an opinion that maybe the Geneva Conventions did not conceptualize a war against a transnational actor, then you risk being ostracized or even jailed. So of course, you do what is expected.

    Keep talking about crushing nuts, that’s a good way to get tenure.

  13. NSD, I was standing a few feet fraom a bomb before it exploded, leaving a metal dorr in the shape of a corck-screw opener. It lifted a man several meters into the air and slamed him into a wall although he was 50 feet across the street.

    So let me say this: It is easy for someone like you, who does not have the lives of others in you hands. Your decisions do not afect anyone. Like the experts keep repeating, with torture you just get anything you want to hear. What you don’t get is reliable information.

    Now, if you think you can do better than the experts, why is it that you haven’t joined those who torture?

    Whatever you do, don’t speak in my name.

  14. And since I’m at it, certain third world countries are jailing all those who directly or indirectly participated in torture: lawyers, judges, and even priests. Wouldn’t it be nice to see the US rise above those barbaric third world countries again??

  15. NSD,

    Right, so now the only people who can even dare to judge the competence, integrity and personal responsibility of government lawyers are… the government lawyers themselves, as they are the only people who really get it. Bravo for that formidable piece of logic. Btw, I might have once had a very lowly position in the ICJ as a law clerk and therefore my opinions had no direct impact on anyone, but to say that my judge or any other judge acted as if he lived in an ivory tower, without any responsibility to the real world, is plainly ridiculous. You simply have no idea what you are talking about.

    And just FYI, I was born and have lived in a country which was destroyed by a decade or so of civil strife. I really do know what both wars and war criminals look like. John Yoo may or may not be one, but he most certainly is a lawyer with absolutely no integrity, and a disgrace to the legal profession everywhere. You are certainly entitled to your opinion, as you are free to justify his actions for political and ideological reasons as much as you like and make as many other hypos involving child testicles as Yoo and you please.

  16. NSD begins with a thinly veiled abusive and circumstantial ad hominem argument against Professors Heller, Milanovic and Davis and continues with same, now focused on Professor Milanovic. I think Opinio Juris should have a policy of deleting comments from anonymous posters who make such mean-spirited remarks that attack a person’s character, motives or trustworthiness without a shred of evidence (and thus, in this case, the ad hominen argument is purely fallacious, whereas in the case of the government lawyers mentioned above it has at least plausibility in light of compelling evidence). If one is going to descend into the muck and mire of such arguments one should at least do so in a transparent manner, not hiding in a cowardly fashion behind a pseudonym; in other words, one should not hesitate to expose one’s own character to the assessment and judgment of others.

  17. I agree with Patrick O’Donnell above vis a vis NSD’s deranged comment. I also believe that while many in the legal academy have condemned Yoo, it is a source of shame to the profession that the man continues to serve on the faculty of one of nation’s leading law schools (Berkeley).

    Incidentally, NSD (and others) Yoo has been criticized not only by human rights lawyers and experts but by governmental lawyers and military officials. I’d say the harshest criticisms of you have come from former Office of Legal Counsel officials like Marty Lederman (see Balkinization) as well as State Dep’t officials like William Howard Taft IV.

    I’d also hasten to add that Milanovic (and most others involved in international human rights) know a great deal more about war and its consequences than Yoo does.

  18. How precisely do the plaintiffs in the case plan to prove Mr. Yoo actually acted in bad faith? I was under the impression he’s been pretty consistent about his position, whether it was right or not as a matter of law.

  19. Godspeed the $1 lawsuit, though there be many pitfalls. The author of the torture memos engaged in shoddy lawyering in the service of an immoral purpose on a terribly important subject matter, contributing directly to enormous and dreadful consequences for individuals as well as for nations.

    I read those memos with a growing, furious pit in my stomach.

    There are many pressures which can cause a person to refrain from speaking his or her mind. Friendship is a powerful one. Bureaucratic inertia, political pressure and loyalty are others. I continue to salute Prof. Goldsmith for doing his duty in the face of each of those pressures in causing OLC to withdraw those memos.

    Would it not be more difficult to establish the legal case against Addington? Though he is perhaps even more culpable, he apparently left fewer fingerprints than did the defendant in the case at hand. That case would seem to be a lot of “he was mean to me in a meeting so I agreed to his horrible policy suggestions”.

    Not to make light of policy meetings. Following up on ‘Judgment at Nuremburg’, I recommend Kenneth Branagh in ‘Conspiracy: The Meeting At Wannsee.’ Meetings have consequences.

    On the subject of Postings:

    I have no objection to the removal of malicious posts, regardless of whether they are signed or unsigned, provided the management leaves some indication that a post has been removed.

    The use of a pen name/pseudonym/nom de plume is a tradition which has been employed throughout history to produce meritorious, challenging and thoughtful work. (Not that I count my scribblings among the lofty examples.) It may be employed for many a good reason, or no particular reason, and the mere decision to employ it is not cowardice (though it may certainly be used cowardly, as in certain untestable or reckless attacks). But pen-named postings should not be in a ‘suspect class’ or deemed illegitimate by themselves, they stand or fall on their merits.

    Removal of a post is a subjective decision and so should be employed cautiously, to ensure that vigorous debate is not being stifled. Vigorous is appropriate. We’re posting some pretty aggressive stuff here about Prof. ‘Organ-Failure-or-Death’, indeed to which NSD was a lonely voice objecting.

    I appreciate the debate here, from the left, right and middle, signed and otherwise.

    D. Gunboat

  20. I just want to apologize to Marko. I meant my first reference to the three professors as a symbol for what their views are, not as a personal attack. I respent their views, even though I think some of them are wrong and misguided. After that the debate just broke down, and I am sorry for my role in that.

    I stand by my basis assertion. Prosecution of John Yoo risks casting a chilling effect on the advice of government counsel.

  21. I also apologize for my spelling.

  22. The most amazing thing is that there have been no protests at Boalt Hall, U.C. Berkely, Yoo’s employer, calling for the removal of a war criminal from the staff.

  23. I was glad to see the apology from NSD.

    I wanted to point out what is perhaps an irony about NSD’s comments. Stripped of the merely personal attack, NSD’s comment could be re-interpreted to stress the role of experience and commitment in matters of legal, political, and ehtical judgment. That is, when we offer an opinion about political or legal conduct, we intend that our opinion be carried out and have real world consequences to real people. In light of that, one might want to assume responsibility for the real world consequences of one’s opinions. That a point I’ve come to believe strongly in. Many people (including, of course, professors!) believe it too.

    But in criticizing the OLC memos, Jack Goldsmith and many others have made exactly that point: the drafters failed to account for the real world consequences of the positions being staked out.

  24. John,

    The problem is that there is no accountability for a position that is overly tiled towards the human rights side of the specturm.

    Imagene if Yoo would have given an opinion that, under international law, the US has no right of self-defense and must afford all terrorists the right to enter the US. An incorrent opinion, let’s assume as frivolous as the one that many claim Yoo actually did write, but no one is proposing accountability through legal action in this case. So what you get is one way accountability, error on the side of human rights or else.

    How about another example, why couldn’t someone bring an action against the ICJ for the Wall opinion on the grounds that it endangers the lives of Israelis. Under the model of accountability proposed by many on this board, judges are responsable for their actions. Fine, but would you allow an action based on the legal theory that the ICJ judges in the wall decision failed to respect Israel’s right to self-defense and, in the process, violated the sanctity of live of Israeli. You may say that is factually untrue, but that doesn’t defeat the facial claim.

    My point here is that this whole argument v. Yoo is a one-sided attack by people with a defined political view, and that accountability is a mere shield for their political bias. No one here would allow such an action against the ICJ …

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