John Yoo complains, “I am trapped on a plane in all of this bad weather”
Poor John Yoo. Apparently now he’s trapped. Or, as his lawyer said, faced with "nothing more than a political rant disguised as a lawsuit." I know you’re all crying for him.
I’m a little bit late to posting about the law suit, on the behalf of Jose Padilla and his mother, against the guy who rationalized his torture, John Yoo. But that makes my punditry job easier–I can just borrow liberally from all the smart lawyers who have been debating the suit in this thread.
Though I’m not a lawyer, I agree with bmaz’s take that the suit is fairly weak.
First off, as despicable as Yoo is, I am not sure he is a proper party defendant here. Secondly, I think his actions are probably entitled to qualified immunity. Third, I see a real problem establishing direct causation for Padilla’s damage elements. Fourth, despite the allegations in the complaint, I am not sure that NDCA is the proper venue. fifth, it is just not particularly artfully plead.
For example, consider the venue question. The complaint cites, with no explanation, 28 U.S.C. § 1391(b)(2) and (e) as its justification for suing in Northern California. So here’s the language they’re using to justify filing in NoCal:
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in
[snip] (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which
(1) a defendant in the action resides,
(2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
(3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.
But no event described in the complaint happened in Northern California–for the most part, it happened in DC or in the brig in South Carolina, so (b)(2) doesn’t seem to apply. And the complaint specifically states that they’re suing Yoo individually, not in his official capacity (presumably to try to avoid some of the immunity that extends to government officials). Furthermore, while Yoo is currently a resident of California, I suspect he would dispute that he was a resident of California when the events occurred (though he probably maintained his voter registration in CA, so who knows). In short, it seems like this suit should be filed in DC or in SC.
And as to suing Yoo–as opposed to President Bush, John Ashcroft, Rummy, or any of the other people described as making the decision to declare Padilla an enemy combatant and subsequently to torture him–the suit appears to rely on two pieces of logic. First, they’re arguing that Padilla was improperly declared an enemy combatant. Though they don’t say it, I suspect they would argue that the government’s changing treatment of Padilla (first as a material witness, then as an enemy combatant, then as a indicted defendant, each change coming just before a Court ruling that might rule that status as improper) proves the enemy combatant–and therefore the treatment he received in the Brig–was not legal.
Presuming that’s what they’re intending (and mind you, I am imposing this logic onto the complaint, they don’t say that), then you get into the allegation that Yoo wrote an opinion that deliberately legalized this illegal designation and went on to write the opinions that legalized the illegal treatment of Padilla.
96. Upon information and belief, Defendant Yoo was personally involved in formulating the recommendation to President George W. Bush that Mr. Padilla be detained without charge as an “enemy combatant.” The actions of Defendant Yoo proximately and foreseeably caused Mr. Padilla to be seized from the civilian criminal system and transferred to military detention.
97. Upon information and belief, Defendant Yoo personally participated in and/or approved the decision militarily to detain Mr. Padilla with the intention of subjecting Mr. Padilla to conditions of confinement designed to coerce from him potentially self-incriminating evidence, to shield the illegal detention and interrogation from judicial review, and to deprive Mr. Padilla of due process of law, proximately and foreseeably causing harm to Mr. Padilla and Ms. Lebron.
98. Defendant Yoo authored the legal opinion recommending that Mr. Padilla could be taken into custody as a military combatant. Defendant Yoo himself has publicly asserted that Attorney General Ashcroft relied on this opinion in recommending Mr. Padilla’s seizure out of the civilian justice system and detention without charge in a military prison.
Though, IMO, this logic doesn’t hold up, as the government always maintained that the criminal indictment in civil court did not rescind Padilla’s enemy combatant status.
The threat of re-detention is not a figment of Mr. Padilla’s imagination. On or about November 23, 2005 – shortly after the criminal indictment against Mr. Padilla was made public – Deputy Solicitor General Gregory Garre informed Mr. Padilla’s counsel, Jonathan Freiman, that it was the government’s position that the “enemy combatant” designation had not been rescinded and that the government could therefore militarily redetain Mr. Padilla at any time based on his alleged past acts.
But then, the suit is much vaguer than I’m making out here, and one of the central intents of this suit appears to be to get Padilla’s status as an enemy combatant back before the Courts. There’s no way Padilla could win this suit, after all, unless a court ruled that his designation as an enemy combatant was improper.
Now, all that’s my take before you get to the question of whether or not Yoo is entitled to immunity for his actions (see bmaz, masaccio, and Mary debating that). And, as bmaz points out, we won’t get to discovery if we don’t overcome the jurisdictional issues, including immunity but also venue.
So, on balance, I guess I’m agreeing with bmaz. I don’t see how this suit gets to the fun part of discovery, for the several reasons bmaz mentions. But I’m not sure that’s the point, yet. Most optimistically, it seems designed to re-open the question of whether Padilla was properly designated an enemy combatant. That might actually work if the plaintiffs work this suit in different venues. But even at the most basic level, this is going to push judges to weight their own self-respect against the government’s claims that it can break the law without any legal consequences. As masaccio argues,
It looks like the point of the complaint is the vivid description of the torture. In the decision, first the judge writes out all of that, stating that the facts stated by the plaintiff are entitled to a presumption of correctness, accompanied by dozens of cites. Then the judge has to patch together some kind of argument to get Yoo out. The contortions in that part will be obvious to a casual observer, and the question is the limits of the willingness of the judge to show to the world that the judge possesses the level of intellectual dishonesty that will be required.
One final thing. The neatest thing about this suit is the way it uses good conservatives against the government. If I’m right about the possibility of using the government’s changing claims as to Padilla’s status, then Michael Luttig’s opinion on those little games comes into play. It relies on past testimony from several people who work at the Brig where Padilla was tortured. And, most neatly, it relies centrally on Jack Goldsmith’s claims about the Yoo’s role in the various memos at the heat of the case, as well as Goldsmith’s stated opinions about how crappy they were.
I doubt this suit, as filed, will ever get to Court. But if it does, it would rely on a long parade of very uncomfortable conservatives having to denounce the torture their party leaders endorsed.
Thanks for the fix EW.
It had been hours.
Never underestimate the ability of jurists to summon forth the intellectual dishonesty necessary to cloak governmental malefactors with immunity for civil rights violations. The phenomenon is absolutely stunning in it’s consistency even in cases that are nowhere near as charged with political and national security features like this one. It is time for some heroes, and maybe some on the bench, and elsewhere in the process, will step forth; but I am not holding my breath.
Oh, I’m not suspecting it will happen.
But if a jurist does write such an opinion–addressing the merits of the complaint at all–then it opens up more interesting possibilities on appeal (presumably one of the reasons why they went NDCA, right?).
I don’t know that this is about winning the suit. It’s about creating the opportunity for big PR about what we do, all the while isolating Yoo and possibly positioning him against those who did order the torture (not a bit of irony in that strategy, if I’m right).
bmaz — I’m curious about something… A long time ago, I was a witness in a trial in Boston that was a “bench trial”, no jury. How is the decision made whether to have a bench or jury trial? Is this some flaky MA thing or is this a choice that exists everywhere? Just curious…
Sorry, should have labelled the above as O/T, and I know you referred to jurists not juries, but it is something I wonder about off and on and thought I would ask, while I remembered.
More relevant to the thread though, I do hope this is an opening salvo to let these criminals know that they will be pursued for their crimes. Perhaps it will induce some of them to cut a deal, spill their guts, and make it easier to send the rest to prison for a long long time.
Depends on the level and type of court, as well as the state and local rules of the jurisdiction. In criminal cases, the general rule of thumb is substantial denial of liberty (incarceration) is at stake you are entitled to a jury trial if you want it, but that right can be waived (usually only with the consent of the prosecution). Similarly, a defendant is usually presumed to be entitled to a jury trial for any felony crime as well as any “crime of moral turpitude”, i.e. any crime of dishonesty such as theft, forgery, perjury etc., sex crimes and the like; even if they are misdemeanors. so, in your case, I would imagine it was either a not particularly serious charge or the parties and court waived the right to jury determination and let the matter proceed to the bench.
Thanks bmaz,I never really understood why one would skip having a jury, or under what conditions it would be permissible/possible to elect to go that route.
You say so many things so well I wish I could have said. Please take normal respirations–because you’d have to hold your breath forever.
You are in for a lot of years of watching judges support State Secrets, Unitrary Executives, and whatever it takes to help DOJ cover the worst period of tyranny in their history.
You also said:
This is all true, but they held Padilla illegally in AdSeg, aka the hole, aka isolation, for 3 years without charges, changing his status when they had to, looking like fools.
John Yoo would last in a closet about 10 minutes before pissing in his pants, and while DAG at OLC, along with Dave Nahmias and his wife are the authors of many criminal memoranda at DOJ that Mukasey and before him Fredo won’t allow them to testify about.
I think one of the so-far unspoken defenses the SolicitorGeneral would be likely to suggest as an amicus would be an interesting presentation of the so-called legislative history of the bargaining sessions over DTA and MCA as a retroactive immunity for maltreatment of prisoners; I thought that was the area in which AGnomineeMukasey was basing his demurers about the partial drowning procedure during prisoner interviewing. Already we have seen state secrets argument from the government to prevent a detainee from revealing the specific abuses. It would be interesting to see if the SG might mention Crown Privilege to protect the compartmentalization of advisory councils during the formation of the belligerent response to the 2001attacks.
As you know, we also have the failure of the Supremes to muster a cert. vote on a state secrets defense upheld by the Bush rubber stamping D.C. Circuit. in El Masri 10/9/07/.
Even Doug Kmieck who has never failed to support the contorted logic of any conservative administration and DOJ doing it’s dirty work has protested:
“The notion that state secrets can’t be preserved by a judge who has taken an oath to protect the Constitution, that a judge cannot examine the strength of the claim is too troubling to be accepted,” said Kmiec, a law professor at Pepperdine University.
It will be interesting when the S. Ct. bypasses a chance to rule the MCA illegal in Boumedine to see how narrowly they rule, how they manage to make it churn through the district court even longer than Tom Delay’s case has disappeared in Texas, and what Kennedy’s concurring opinion will be in the 5-4 opinion in mid June.
The keyboard and mouse have given me grandiose powers of prognostication obviously, but I’m not optimistic.
That doesn’t matter for jurisdiction. A court pretty much always has jurisdiction over a person who is sued individually in the place where they CURRENTLY reside. IOW – he currently resided within the court’s jurisdiction – that pretty much gives the court jurisdiction over him. It’s probably not the most convenient jurisdiction, with evidence and witnesses being in other places, but if Yoo is a current resident, I think he would have a hard time on the jurisdiction front. After the NY/2nd Cir v. So. Car./4th Cir debacle, I think they played it safe on jurisdiction.
The suit isn’t very artfully pled, but there might be some perverse tracks where that might actually enhance the ability to get some discovery in response to a Motion to Dismiss. If the Motion to Dismiss isn’t granted early and on other grounds, start the countdown to the invocation of both state secrets and Exec privilege. By the nice, respectable, torture solicitors at our Dept. of Justice.
Iif they get past MtoD and begin to amend pleadings and use the theories used in the NY litigation (big IFs with the district and the pleading) then expect to see Comey’s task force who worked up this info for the press conference and Comey being at issue – – bc if Gov did what Comey said it did, the report on the So. Car. brig and what was happening to Padilla directly as a result of DOJ authorized policies (including by then Goldsmith’s own replacement memo for Yoos memo) would have been on Comey’s desk and he gave that presser knowing all about how the policies were being implemented. Which seems likely from the way he handled the Geneva Conventions question and the FBI questioning questions at the Presser.
As inartful as the pleading was, one thing it does do is also open up the possiblity of Padilla filing several more suits, in several more jurisdictions, against several other parties. The Fourth may not be a circuit that really has a reputation right now for upholding the Constitution, but the Second does and some of the actions took place there. If his lawyers got some support and choose to go with scattershot, there could be lots of fun times at the OK Corral getting different people in front of different courts and letting DOJ start scrambling to cover all fronts with their interventions and assistances and official status representations.
I don’t know anything about the CA courts and am not a litigator, but I’m going to say that after some of the NY rulings, the suit by a 9/11 round up victim against Ashcroft and Mueller based on generating policies and knowing about how policies were being unConstitutionally implement survived dismissal and was going into discovery, even though roundee had actual criminal charges against him as well, when Gov did a six figure settlement.
Isn’t it highly incriminating that to Yoo that Daniel Levin wrote a brief declaring waterboarding to be torture? Wasn’t Levin Asst AG? Doesn’t Bushies recieving an opinion from Yoo amount to ‘lawyer shopping’ or ‘opinion shopping’?
If Yoo knowingly participated in compartmentalizing his opinion away from his chain of command, concealing it from Ashcraoft and stovepiping his opinions authorizing torture, wouldn’t that cut against any claim of immunity?
I just saw this comment from last night bmaz:
LOL You funny. Here’s another thought – if this were the 60s, wouldn’t it give students something to do in their spare time on motions days? I hadn’t thought about Walker, but that’s a good point.
Berkely (Boulder too for that matter) is not what it used to be, much to my chagrin.
Just a waste of time.
Might has well sue President Bush.
My father used to say that even a blind pig finds an acorn once in a while (this is a really bad aphorism because pigs have poor eyesight and find things mostly by their sense of smell, but you get the picture). Suing President Bush is a great idea, although that will probably have to wait a year or so.
I am just glad to see someone do something to disturb Yoo’s glide thru
his beautiful career. Too many of these overachiever types are sociopathic
to suit me, better someone in his former positions to have been a real life
attorney, rather than the legal scholar type, walking computer bot.
Which is, IMO, another of the goals of this suit–to communicate to Yoo that he is a marked man, and he will increasingly have to fight the charge that he is the madman that pretended to legalize torture. masaccio said in the last thread that he’s an ideologue and that’s true. But if you see more of these suits, if you disturb the polite legal community’s fiction that Yoo is smart and not intentionally wrong, then you’re going to make it harder for him to retain the credibility he currently has.
Can I change my vote on the banning of the house troll? I want to embrace her on some level, but it is getting increasingly hard with the increasingly mindless, simpleton crap she posts….
If I were defending Yoo, i would file a Motion to Dismiss- Forum Non Conveniens alleging improper venue before I even bothered with the Rule 12b arguments.
Ooops, sorry about the Latin mumbo jumbo. Here is a link for the term “forum non conveniens”.
EW @13 – That is a good point. Berkely may not be what it used to be, but there are still some remnants to be ginned up maybe, especially in the academic community there; which could make things a tad uncomfortable for dear Yoo
Luttig berated the SG as disingenuous for the attempt to remove Padilla’s case from USSupremeCourt review at the last minute: “First, the government’s actions since this court’s decision issued on
September 9, culminating in and including its urging that our opinion be withdrawn, together with the timing of these actions in relation both to the period for which Padilla has already been held and to the government’s scheduled response to Padilla’s certiorari petition in the Supreme Court, have given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court….As for the first of these reported concerns, we would regard the intentional mooting by the government of a case of this import out of concern for Supreme Court consideration not as legitimate justification but as admission of attempted avoidance of review” Luttig wrote December 21, 2005, at pp.4-5…and…”The government cannot be seen as conducting litigation with the enormous implications of this litigation — litigation imbued with significant public interest — in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound.”
Yoo has a Federalist Society brother who also is a law professor, there
is a phalanx of them coming out of the Bush terms into law schools all
over. Sue the bastards. Thanks EW.
To me the issue of Yoo as counselor is different from roots in academe; in fact, the schools serve a profound purpose. The impediments are in the governance style which rested on Yoo’s commissioned permissory memo, and especially how judgement weathered over the numerous subsequent years. We have seen part of that history in the tapes destruction discovery, hints there may have been actual reshapings of abuse programs as congress incrementally picked the varieties of maltreatment it would ignore. Likely congress will revisit that topic and restrict some of it, if the composition of congress is widely different after elections, and if the Rodriguez hearing is substantive two weeks from now.
I wish I were more confident of a Congressional approach to these
matters. They have been unable to shake the fear campaign and a very
solid opposition to “tinkering” with the legal apparat crafted for the
executive. Guess we must wait and see what develops, more is sure to
ooze out from the rotting corpse of Bushco.
I have a really sick mind. Yeah, ok, that is not a shock to anyone here. But EW’s framing of Yoo’s dilemma in terms of an Airplane made me think that maybe Yoo “picked a bad week to quit sniffing glue.” We can only hope….
Here is a question for the legal minds that I have been wondering about.
All of these far-out opinions that OLC and others have issued — do they actually become a part of legal thought processes (jurisprudence?)? I hope that I am using the correct terms. I think I remember that stare decisis allows the courts to rely on prior decisions.
So, these idiots issue defective opinions, does that have the effect of pulling all of the legal analysis and thinking to the far right?
On the other hand, I seem to remember that there is some concept in the law that sometimes a decision totally misses the mark and can be rendered defective in some manner.
I guess what I am wondering is: If these are defective opinions, and the people who relied on them knew that they were defective, what happens then? Can those people be prosecuted?
I know that there are many grey areas in the law that are open to interpretation, but there are also too many things that have been pounded into all of us about truth, justice and the American way. Torture is torture.
That’s an area that Goldsmith actually addresses in his book. While not stare decisis per se, there is the recognition that if you keep changing the opinions that govern executive branch activities, you’re going to cause chaos. While new administrations sometimes reconsider the opinions of prior administrations (and I would imagine they will in this case, after publishing teh remaining crappy ones so everyone can mock them soundly), it almost never ever happens within the same party.
Thanks for the info! I am woefully behind on any elective reading due to some other work-related things. Goldsmith’s book is one that I want to read.
If nothing ever happens to any of the torturers or those who approved the policies, it was pretense. It will have become fact.
One of the mysteries in the tapes destruction was that only JaneH’s voice in congress tried to keep the executive off the slippery slope, and, standing alone, her stature was too isolated to be effective. Reading thru the P v Yoo document, there is some clear contemplation of defect in oversight, although the executive in our system is salubriously designed for strength and agility. Congress needs to reconfigure its feedback mechanisms so, for example, a president with early signs and symptoms of, e.g., Alzheimer’s dementia, could not become a figurehead who signs a ’secret finding’ authorizing Hawk sales to fund contraMercenaries in Managua, takes lots of naps, and lets the FourthBranch veep serve as primary executive; same trope with different symptomatology 18 years later. Leahy had been the only one I knew of taking interest in resolving that inconsistency, though Whitehouse has shown promise.
14 – I bet we see that and some successive Dismissal efforts (they may join them but I would stagger them) for things like failure to state a claim.
I’m betting, deep down, Yoo is thrilled over the suit, especially since it isn’t a work of art. He went from this self vision of importance, to being nothing, not even anyone whose opinion is actually read for content once he gets a rag to put it up. This will give him another shot at that importance he craves, an opportunity to “sales pitch” his torture arguments again, and attention. Especially attention.
Yeah I would agree, Yoo probably does get off on the notoriety and relishes a forum to return Goldsmith’s offhand potshots that have been center stage for too long in his eyes.
I would absolutely string out the pre-responsive answer defenses. You can’t lose a lawsuit if you haven’t had to even answer the stinkin complaint you know. So far, the Padilla side is represented by what effectively looks like a law school clinic effort. These guys have few resources in terms of funding and filed their action a long way from home. I’d string them out till the next of never; they will dry up and go away sooner or later if reserves don’t come to the rescue.
make that 24 “it wasn’t pretense”
This excellent blog/string is what makes the internet so powerful. MSM, especially news, can never get the feedback,thoughtful responses and discourse I’ve read hear. Praise the Lord! (Mine, not yours)
I kind of like TheraP’s question about multiple suits. I know we don’t have a client, and I certainly don’t know anything about this, but I wonder if we could figure out a basis for filing an amicus brief.
I agree with what bmaz and mary say about stringing out defenses, especially with bmaz’ idea that Yoo could file something like a jurisdictional challenge on the immunity issue. Yesterday I was having a problem finding the complaint, so I e-mailed counsel, who responded immediately with a copy. I asked if there is a legal defense fund and will post if I get a response to that. I’m thinking an amicus brief would be more fun than some of what I’ve got right now. Not all of what I have, but some.
Well, bmaz, what did you say that is different from my statement? You had detail, but the essence was the same. There is really no need for a lot of detail for the suit is without any merit.
You might as well say sue the people that voted Bush in who then gave Woo a place at the table.
“Sane ego (bmaz) te vocavi. Forsitan capedictum tuum desit”
Bmaz did call. Your answering machine is broken
Late to this party. Two thoughts:
1. I agree with Mary that Yoo basks in his own self-importance. Reminds me of a toad sitting luxuriating in the sun, imagining the sun is there for his own enjoyment. Nevertheless, any lights shining on him also allow for others to voice the travails of the voiceless. So, it becomes an avenue for others also to speak out, not for personal gain, but to move the cause forward. In addition think how any university likes its reputation. Think how people want their families to view them in a good light. There are many ways to embarrass someone, professional associations (and what about those lawyers who signed something related to the Constitution? can they be mobilized for this?). You may not win a fight in court… but consider that your lawsuit or your amicus brief operates like a social garbage dump. No one wants to be a walking garbage dump.
2. Seems to me that the mere presence of the “pet troll” is an indicator that this lawsuit is viewed (somewhere) as highly dangerous. I personally am going to keep an eye on when/where the troll posts. Because that operates like a red flag. And on this post there are two red flags. It says NB.
Wish I could help out on the legal end. But I’m simply trying to point out that sometimes you legal folks might underestimate the power of simply having to fight a legal battle…. or more than one. Definitely he should have to battle to keep from being disbarred. And never forget the spill-over effect related to his university position, his social standing, etc.
I am drawn to the really, really empty logical assertions. They are like little alarm clocks waking me from a pleasant but light slumber.
Still though, it is pretty easy to note that I always maintain my civility while others fall into some kind of distemper and have fits when I point out the vacuousness of their statements.
Confusius say airliner with John Yoo on board is one that truly has Snakes On A Plane.
Snakes on a Plame?
When will Mukasey make the decision to turn over the transcript of the Fitzgerald interviews of Bush and Cheney in the Oval Office? …and other files not covered by grand jury secrecy rules and executive privilege?
… and for all the usual reasons.
Grow up Neil.
Somewhere, in some airport, is a TSA flunkie that would actually find your repartee stimulating and would want to frisk you. Please go find them….
You meant to say, but couldn’t find the words, that Mukasey is running interference for Bush and Cheney along with Addington, Fielding, and Gillespie and that integrity and Material Witness Mike will never be in the same place at the same time.
Nearly 10% troll content. NB.
I left this a couple threads ahead, but it’s worth repeating.
Even if the suit goes nowhere, John Yoo’s pasty pig face was all over his local papers under the headline, “Tortured suspect sues Yoo.”
The man is a pig, and easily recognizable. Bolt Hall employs him to their shame, and no one can be reminded enough. Hopefully it will inspire more folks to work on getting Torture Yoo fired (its the least we can do).