Court Allows Padilla Suit Against Yoo To Proceed

There was a significant new opinion released in the NDCA late Friday (h/t Lindy and Fatster) in the case of Jose Padilla v. John Yoo. The decision is devastating to Yoo and to the thought by the Obama Administration that the American legal system is going to blithely allow them to simply "move forward" and leave behind, and out of sight, the malevolence, malfeasance and depravity of senior Bush/Cheney legal officials in relation to their torture regime.

Yoo might be having a bad day when a Federal judge starts his analysis of your immunity claim by citing Alexander Hamilton from the Federalist Papers. And that is exactly what Judge Jeffrey S. White of NDCA District Court has done:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. [The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).]

First, a little background is in order. The plaintiff is Jose Padilla, an American citizen arrested with great fanfare on May 8, 2002, on a material witness warrant, by the Bush Administration as being a "dirty bomb" suspect. As the "material witness" warrant was a sham, Bush (through Rumsfeld) quickly designated Padilla an "enemy combatant" and placed him in the custody of the Department of Defense, the military, and locked him up indefinitely in the US Naval brig in Charleston, South Carolina. Padilla was detained without being charged, was subjected to extreme isolation, including isolation from both counsel and from his family, and was interrogated under threat of torture, deportation and even death. He was placed in solitary confinement in a tiny cell in an otherwise empty wing of the military brig. Padilla alleges that he was “subjected to a systematic program of unlawful interrogation methods and conditions of confinement, which proximately and foreseeably caused him to suffer extreme isolation, sensory deprivation, severe physical pain, sleep deprivation, and profound disruption of his senses.

The defendant is the notorious John Yoo, Bush torture lawyer extraordinaire. Yoo, of course, is currently a law professor at the University of California Berkeley and was, at the times material to the complaint, Deputy Attorney General in the Office of Legal Counsel for the Bush/Cheney Administration. Padilla states, and the court accepted as fact, that Yoo:

…was “the de facto head of war-on-terrorism legal issues” and a “key member of a small, secretive, and highly-influential group of senior administration officials know as the ‘War Council.’” As such, Yoo admittedly “shaped government policy” in the “war on terrorism.” Padilla alleges that Yoo personally was involved in the decision to designate him as an enemy combatant and that Yoo lay the groundwork for the treatment of enemy combatants
under military detention.

Padilla also alleges that the policies Yoo drafted included “the decision to employ unlawfully harsh interrogation tactics” and “pressure techniques proposed by the CIA” against individuals designated as enemy combatants. Padilla further alleges that the policy of employing harsh interrogation tactics against enemy combatants “proximately and foreseeably led to the abuses suffered by Padilla.” (Citations omitted).

In a nutshell, Jose Padilla is suing Yoo for being the protagonist in writing legal cover that got Padilla detained indefinitely without due process and tortured to the point of mental insanity. John Yoo responded to Padilla’s complaint with the tried and true, and uncommonly successful, ploy of filing a Rule 12(b)(6) Motion to Dismiss based upon qualified immunity. Taking a huge cue from his Chief Judge, Vaughn Walker, Judge Jeffrey White has taken the absurdity of the government (yes the DOJ is still representing Yoo) position apart at the seams and thrown it in their face. Judge White has ruled that all of Padilla’s claims, save one, may proceed forward. And he lays the wood to the Bush/Cheney torture regime and their depraved contortion of the law, and the Constitution, in the process.

It is an extremely well written opinion, and I highly recommend you read the whole thing if so inclined. The first item that struck me is how Judge White has sidestepped the recent Iqbal decision. Just as I though might be the case, Iqbal is shaping up to be nowhere near the problem many thought; instead, Federal judges like Jeff White and Vaughn Walker are affirmatively using it as authority to permit civil liberties cases by finding exactly the conditions necessary to satisfy Iqbal. When the trial court affirmatively complies with that process, and that is what was done here, and still finds the grounds for a valid cause of action, it is going to be very hard for an appellate court to undercut the decision.

Next, the court undertakes a detailed analysis of the criteria necessary for a valid Bivens claim and, wonder of wonders, finds Padilla’s claims sufficient. The discussion by White where he finds a valid Bivens claim is long, covering pages 12 through 28 of the opinion but, to put it mildly, is a work of art. Like Vaughn Walker in al-Haramain and Jewel et. al, Jeffrey White has taken the supposed strength of Yoo’s defense and narrowed it, defined it and filleted it open. And, as with the Iqbal portion, he has done so in a manner that is designed to withstand the rigors of appellate scrutiny. John Yoo ought to be very concerned about this.

In the third and last major section of the opinion (starting on page 29), Judge White specifically dissects Yoo’s bleating qualified immunity assertion.

Yoo also argues that he is entitled to qualified immunity on all claims. The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate any clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).

The last part – "when they perform their duties reasonably" – is the key here. As you might guess, Mr. Padilla does not think that John Yoo performed his duties reasonably (neither do I). This has always been the threshold that the blithering idiot main stream media keeps spewing cannot be reached. Guess what, Judge White is a little more sanguine and thinks reasonable people could find that John Yoo was unreasonable. The court described the standard applicable to consideration:

A court should then address the question “whether, under that clearly established law, a reasonable [official] could have believed the conduct was lawful.” Id. This inquiry must be undertaken in the light of the specific context of the case. Saucier, 533 U.S. at 194. In deciding whether the plaintiff’s rights were clearly established, “[t]he proper inquiry focuses on whether ‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted’ … or whether the state of the law [at the time] gave ‘fair warning’ to the officials that their conduct was unconstitutional.” Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (quoting Saucier, 533 U.S. at 202).

At this point, it should be noted that the court here is not finding that Yoo’s conduct violated Padilla’s rights as alleged in the amended complaint, only that Padilla has stated a sufficient cause of action that may be responded to and on which the case may proceed forward with discovery and determination on the merits. But the words and discussion in the decision leave little doubt that the court believes there are solid cognizable claims against Yoo:

Indeed the “requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Johnson, 588 F.2d at 743-44; see also Kwai, 373 F.3d at 966 (same).

Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.

There you have it, governmental lawyers like Yoo, Bradbury, and Gonzales can be held liable for the foreseeable consequences of unprofessional work. This language must be doubly disturbing to Yoo et. al coming right before the imminent release of the reportedly scathing OPR Report.

Padilla alleges, among a whole page of detailed and descriptive allegations contained on page 33 of the opinion, that Yoo:

intended or was deliberately indifferent to the fact that Mr. Padilla would be subjected to the illegal policies [Yoo] set in motion and to the substantial risk that Mr. Padilla would suffer harm as a result. [Yoo] personally recommended Mr. Padilla’s unlawful military detention as a suspected enemy combatant and then wrote opinions to justify the use of unlawful interrogation methods against persons suspected of being enemy combatants. It was foreseeable that the illegal interrogation policies would be applied to Mr. Padilla, who was under the effective control of the U.S. Southern Command – the same military authority that controlled Guantanamo – and was one of only two suspected enemy combatants held at the Brig.

Judge White held:

In light of these allegations, the Court finds Padilla has alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.

Nice, tight and sweet words and, again, devastating to the interests of John Yoo and similarly situated torture attorneys. Oh, and one other thing, Judge White eviscerated the inane argument that because Padilla was not convicted of anything at the time, he was not entitled to Eighth Amendment protections against cruel and unusual punishment. This argument, Scalia’s rambling to Lesley Stahl notwithstanding, has been flat out silly from the start, and many of the commenters here have pointed out the obvious arguments against it for some time now. That said, it is good to see it dispatched in writing by a Federal judge:

Yoo contends that because Padilla was not convicted of a criminal offense at the time of his military detention, the Eighth Amendment prohibition against cruel and unusual punishment does not apply to him. However, “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). “[C]onstitutional questions regarding the conditions and circumstances of [the] confinement [of detained persons not convicted of a crime] are properly addressed under the due process clause of the Fourteenth Amendment, rather than the Eighth Amendment’s protection against cruel and unusual punishment.” City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983). However, “[i]n light of the Supreme Court’s observation that the due process rights of pretrial detainees are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner,’ we have recognized that, even though the pretrial detainees’ rights arise under the Due Process Clause, the guarantees of the Eighth Amendment provide a minimum standard of care for determining their rights.” Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003) (internal citations omitted).

Exactly right; thank you Judge White. Now there was one minor claim by Padilla that did not survive White’s scrutiny, and, under the factual circumstances, White is probably correct to bounce it. That claim was that Yoo had violated Padilla’s Fifth Amendment right against self incrimination. White reasoned that because there is no allegation in the complaint that Padilla was ever made to be a witness against himself or that his statements were admitted as testimony against him in his criminal case, he did not state a claim for violation of the Self-Incrimination Clause of the Fifth Amendment. Again, a minor claim in the scope of the complaint and an arguably correct denial of it.

One last thought. It appears to me, whether consciously or unconsciously, Judge White has fashioned his opinion with a very determined eye to having it stand up on appeal, and specifically in the Supreme court. From the outset of his discussion, White framed it in terms of the auspices of Hamdi v. Ashcroft, 504 US 507 (2004). Hamdi was one of the very first opinions from The Supremes reeling in the unitary executive acting under Article II and the AUMF. The really notable thing about Hamdi, however, is the separate opinion authored by Nino Scalia berating the Bush/Cheney detention and treatment of American citizens in the war on terror, naming Padilla expressly.

Scalia, relying heavily on Ex parte Milligan, 4 Wall. 2, 128—129 (1866) said:

In my view this seeks to revise Milligan rather than describe it. Milligan had involved (among other issues) two separate questions: (1) whether the military trial of Milligan was justified by the laws of war, and if not (2) whether the President’s suspension of the writ, pursuant to congressional authorization, prevented the issuance of habeas corpus. The Court’s categorical language about the law of war’s inapplicability to citizens where the courts are open (with no exception mentioned for citizens who were prisoners of war) was contained in its discussion of the first point. See 4 Wall., at 121. The factors pertaining to whether Milligan could reasonably be considered a belligerent and prisoner of war, while mentioned earlier in the opinion, see id., at 118, were made relevant and brought to bear in the Court’s later discussion, see id., at 131, of whether Milligan came within the statutory provision that effectively made an exception to Congress’s authorized suspension of the writ for (as the Court described it) “all parties, not prisoners of war, resident in their respective jurisdictions, … who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired,” id., at 116. Milligan thus understood was in accord with the traditional law of habeas corpus I have described: Though treason often occurred in wartime, there was, absent provision for special treatment in a congressional
suspension of the writ, no exception to the right to trial by jury for citizens who could be called “belligerents” or
“prisoners of war.”

But even if Quirin gave a correct description of Milligan, or made an irrevocable revision of it, Quirin would still not justify denial of the writ here. In Quirin it was uncontested that the petitioners were members of enemy forces. They were “admitted enemy invaders,” 317 U.S., at 47 (emphasis added), and it was “undisputed” that they had landed in the United States in service of German forces, id., at 20. The specific holding of the Court was only that, “upon the conceded facts,” the petitioners were “plainly within [the] boundaries” of military jurisdiction, id., at 46 (emphasis added). But where those jurisdictional facts are not conceded–where the petitioner insists that he is not a belligerent–Quirin left the pre-existing law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.

Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla.

Everybody always assumes that Anthony Kennedy is the point of attack for success on these issues in the Supreme Court, and I do not disagree that he is a target. But I do not think he is the only one and, irrespective of his excited informal chatter with Lesley Stahl of 60 Minutes, I think, because of the Hamdi framing, and other intricacies, Antonin Scalia is square in the sights of Jeffrey White and his opinion in Padilla v. Yoo. Once again, a NDCA judge has set up a beautiful piece of work designed to not only survive review in the 9th Circuit (and I think it will), but also with the foresight to play in the Supremes. It is a beautiful thing.

All in all, it is a fantastic decision, once again the Federal judges in the 9th Circuit and NDCA come riding to rescue of the United States Constitution when our Federal government and legislature will not. It is a reminder of the simple beauty of the balance and separation of powers the Framers left us, and the importance that each branch passionately protect all citizens’ rights. Maybe someday Barack Obama will get his finger out of the political winds and stop protecting and excusing the gross malfeasance of the authoritarian state and protect the Constitution instead. Hope springs eternal.

image_print
81 replies
  1. fatster says:

    Yay! bmaz delivers. It was worth waiting for. Thanks so much. Judge White rules–and how!

  2. valletta says:

    I’ve been following this torture fiasco since way back in 2002, when the first rumblings began and all I can say is I have hope again, finally, the truth will out.

    Having read most of the books these last 8 years about what an abomination the two terms of Bush were and it seems the mosaic of truth is becoming apparent to us mere mortals. I’m hoping the judges and attorneys who have been working in the weeds for years now are ready to show their cards, with certainty and conviction. It would be worth the wait.

  3. Jeff Kaye says:

    Great analysis, bmaz. God, I hope that Padilla can get his pound of flesh out of Yoo for the ungodly inhuman torture he suffered.

    And to think I’d ever quote Scalia, yet the issue is so clear:

    Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.

    Guess Yoo disagrees?

  4. JThomason says:

    I do not think that the jurisprudence arising out of Northern California necessarily has anything to do with the special ecological niche the Russian River represents but who really knows what has been going on in Marin, Sonoma, and Humboldt counties for decades now.

    So all meta-textual asides dispensed with, it is especially interesting that this Padilla case rises to the fore in the executive power debate in a week where, for all his good intentions, Whitehouse seemed to think and affirm that there was some positive reliable intelligence concerning Padilla and “dirty bombs” arising of the CIA interrogation activity. Whitehouse sited the Padilla situation as an example of how well traditional intelligence techniques work. But maybe it illustrates another principle around the efforts to control the story where Cheney et al. (that has a nice legalistic ring to it doesn’t it) have concocted whole messes of lies that they have thrown out to the public on the hope that a defense for their unconscionable activities will be available behind any bit of their concocted meme that sticks. That is not to say that some detainee did not mention Padilla but this in and of its self, as a matter of fact, only casts a suspicion of the kind Cheney and Co. sought as the “special attractor” for their fictions giving further cover for the crimes committed in the war on terror without further legitimate process. And so the question is was some of this excreta yet stuck to Whitehouse’s glasses?

    Still bmaz this account is a sweet read. Looks like someone gets it and is not afraid. Of course authoring sham legal opinions intentionally incomplete and misleading that encourage others to break the law should create the occasion for liability.

    • bmaz says:

      Oh, i have no inclination that Padilla is totally innocent; he is almost certainly not totally innocent. But he is, and was, an American citizen and, as Mary has been pointing out for years, Milligan is still quite sound precedent. And as Scalia relates, Milligan is crystal clear that if there is no formal Habeas suspension and courts are open, and there is no question whatsoever but that there was no suspension and the courts were open at every moment, that you simply cannot do what Yoo authorized and Bush/Cheney did. It is literally black and white. That is the starting point for everything else in Padilla’s case, and there is no escaping it. When you start off with the poisoned fruit of black and white bad faith, and proceed downhill from there, it is really hard to argue that you were acting reasonably.

      And, as we have seen over the last few months, there is a whole lot of proof seeping out that corroborates the bad faith of Yoo et. al’s work. The main stream media needs to wake up as to how deep, and how bad, this really is. They have been willfully blind and reticent to think about all this; it upsets their clean little slate of pablum they want to feed the public, and it takes real work and thought to analyze and break down. They appear to not be up to the moment.

      • JThomason says:

        Well yes, and I understand Padilla has been convicted, but not of the “dirty bomb” charge. Its this readiness to suspend the presumption of innocence as to particulars in the media brouhaha around “terrorists” charges about which I am complaining. Maybe there are CIA findings that flesh this charge out but if we have learned anything in the last eight years maybe it should be not to be so accepting of government pronouncements. That is all. All the disinformation invites a relaxing of vigilance. So I certainly agree with your bottom line. I do not know if Whitehouse was attempting to throw the CIA a bone or not but this part of his presentation bothered me.

        Also I am thinking I meant “strange” attractor.

        • scribe says:

          IIRC, the complaint in this case was filed before the conclusion of Padilla’s criminal trial, verdict, and sentencing. If you go back to the trial, there was a document introduced into evidence which purported to be his Al Qaeda application form. This document, allegedly, had been found in a cache of documents recovered in Afghanistan (by an illiterate or barely-literate in the local language) Afghani soldier, who immediately recognized the importance of this particular English language document and got it to the Americans who, in the heat and stress of the battlefield, managed to preserve it well enough that literally years after its capture and still more years after being prepared it still bore perfect fingerprints from Padilla.

          The counter-contention raised in an unsuccessful motion to suppress but not clearly raised in trial because it would have required his testimony (and once the defendant takes the stand all issues are open) and because torture had been pretty well excised from the case, was that the government had cooked up this document and presented it to Padilla during one of the interminable interrogation sessions in the brig, even going so far as to press his hand onto it to get the prints.

          At the time Padilla pleaded his initial complaint, he could not have pleaded all those facts in the complaint because he would have been testifying (IIRC, this was a verified complaint, i.e., one made under oath), and that could have been considered as a waiver of the Fifth Amendment privilege and it would also have been an admission against his own interest (i.e., he would have been saying “I’m guilty”) before the conclusion of his trial. Moreover, he could not have pleaded a violation of his self-incrimination rights unless he had been convicted.

          But IIRC he had to file the complaint when he did lest he blow a statute of limitations.

          So, there’s the gist of his failure to state a claim on the self-incrimination issue.

            • bmaz says:

              It is in a way isn’t it? White did say that Padilla could amend on that count, but I dunno. That said, if you had to lose one, that would be the one. And i will say one other thing about the view to the Supremes, Sotomayor spooks me on anything close to a law and order issue; I think she is more of a governmental authoritarian than people realize. Couple that with being a rookie when this likely hits, I do not feel nearly as good as I would with Souter.

              • JThomason says:

                Sotomayor’s confirmation appears to be fait accompli. I agree with you but as with the move to IG’s in the face of Bush’s excesses the ability to comprehend the legislative concessions exacted and the political capital accrued is over my head. Still I would prefer Obama’s calling for more starch in his laundry.

                I still don’t know how to weigh the social advances inherent in the Obama story with the reality of the political concessions he seems to favor. And top that off with the understanding the Cairo speech certainly turned up the heat on political situation in Iran.

                Why would Sotomayor begin her career by joining the Republican appointments where the political implications associated with the Court’s majorities are fairly well understood? That said I am not readily familiar with the timing of Souter’s realignment.

                • bmaz says:

                  Decent point on why would she join the conservative block. I have no answer, just that for these issues, at this time, I picture Souter as arguing more forcefully in the right direction. The target points are still Kennedy and Scalia, so it is probably a minor concern.

            • scribe says:

              No, not a catch-22 in the formal sense. What it was, was a pitfall of pleading which one often sees in cases brought by pro se litigants but not so often in cases brought by lawyers.

              To give another example: a complaint for malicious prosecution requires (among other things) that the criminal case (over which you’re now suing) have been brought and continued without probable cause and that the case have been terminated favorably to the accused (who is now the plaintiff).

              By definition, then, the criminal case has to be over before the malicious prosecution claim can exist. But, time and again, pro se litigants will file a complaint alleging malicious prosecution while the criminal case is pending. And then they stand there scratching their heads wondering why it got dismissed.

              More subtle, and a trap even lawyers fall into, is the “lack of probable cause” requirement for a malicious prosecution suit. In my state, and likely all others, the existence of a warrant to arrest creates probable cause. The cops went to a judge and laid out information under oath and the judge said “that suffices to arrest”. The same, even moreso, when there’s an indictment. Testimony under oath to a grand jury which then deliberated and said “indict” usually means probable cause. But, if the case is bullcrap and you intend to sue over it, you really need to go back and get the warrant re-examined. Bring out the facts, attack the warrant and try to get a finding that there was no probable cause. Or at least undermine it severely by showing that the cops had lots of information they didn’t share with the judge or the grand jury and, as a result, the presentation was so deficient that no probable cause existed. But, you need to do all that in the context of the criminal case, which is why those sorts of cases are so rarely successful. The criminal defense lawyer is likely underpaid and focused on one thing and one only: keeping you, defendant, out of jail. Coming back later doesn’t work.

              There’s a logic to these sorts of things and that’s why the dismissal of Padilla’s Fifth Amendment Self-incrimination claim was both not noteworthy and not unexpected, as was the direction that he be allowed to replead. The normal relief for those parts of a motion to dismiss for failure to state a claim (a 12(b)(6) motion) which are granted is to do the dismissal without prejudice and with leave to replead. In other words, “if you can do a better job of doing the pleading, please do so.” The only time a dismissal on a 12(b)(6) motion is “with prejudice” is when there is no set of facts which the plaintiff can plead which would survive a subsequent motion to dismiss under 12(b)(6).

              But, as noted by my earlier comment that this case is going to go to the 9th Circuit right away, we should remember to not get ourselves all excited about the prospect of John Yoo being compelled to testify any time soon. I’d guess it would be a good two years at the earliest before we get to that point.

              • JThomason says:

                Does your analogy with the malicious prosecution situation stand on all fours as it were? I get that you are saying that the civil matter was filed too soon and the Al Qaeda application should have been attacked for the purposes of exclusion in the underlying matter. As to whether protecting Padilla from testimony was a tactically sound decision is really impossible for me to evaluate with limited knowledge of privileged facts.

                Please keep in mind that my comments stemmed from my doubt of the credit Whitehouse gave to the CIA for eliciting facts about Padilla and “dirty bombs” using conventional interrogation methods when this “dirty bomb” story line in fact is dissipate. Your comments I think contribute to understanding how Padilla is being used in the collateral political discussions as you cast all kinds of doubt around the question of what do we really know about the facts that served as the basis of Padilla’s conviction. In that respect Padilla was facing a “Catch-22″ in that in the face of arbitrary indefinite illegal detention, the black and white error bmaz highlights, no approach was necessarily going to be particularly advantageous to him. But I say that only to assure you that I think that I know a Catch-22 when I see one, but I could, of course, be wrong.

                • scribe says:

                  By definition, since I am using an analogy, it is not “on all fours”.

                  The point is, Padilla had to include the Fifth Amendment claim in his complaint initially, because to fail to do so would have likely wound up in it being forfeited by operation of the statute of limitations. It was not really actionable because there was no conviction yet, but because of pleading vagaries like the malicious prosecution example I presented above, he had no choice. The testimonial issue I highlighted was another issue.

                  Now that he’s been convicted, in part on the strength of that “Application for Al Qaeda Membership” form, he can argue that it was a creation of the torture process without worrying about committing self-incrimination.

              • Tinroof says:

                we should remember to not get ourselves all excited about the prospect of John Yoo being compelled to testify any time soon. I’d guess it would be a good two years at the earliest before we get to that point.

                You mean we might get to spend a year or so watching W’s best lawyers testify about why it’s okay to torture American citizens? While Republicans run national campaigns on “law and order” and “family values” and “national security,” and Cheney snarls in the background?

                Gotta go invest in popcorn.

      • scribe says:

        If you go back to the initial S.D.N.Y. proceedings brought by Padilla’s lawyers, seeking habeas relief to get him out of the brig and back before a federal judge in NY (Mukasey, IIRC), and look at the complaint (it’s part of the record in the first trip to the Supreme Court, which the S.Ct. punted on by saying the case should have been filed in South Carolina, whence Rumsfeld had spirited Padilla from New York), you will note that the complaint pleads the language of Milligan: that the courts are open and habeas has not been suspended.

      • Watson says:

        “if there is no formal Habeas suspension and courts are open … you simply cannot do what Yoo authorized and Bush/Cheney did.”

        To me, this is the common-sense essence of the moral issue.

        A fluid battlefield situation might justify an extraordinary “take-no-prisoners” policy, because soldier-captors don’t have access to a custodial/judicial apparatus for detaining and processing captives. But if courts are open and accessible, there’s no excuse for not using them, or for suspending habeas.

        • stryder says:

          “A fluid battlefield situation might justify an extraordinary “take-no-prisoners” policy, because soldier-captors don’t have access to a custodial/judicial apparatus for detaining and processing captives. But if courts are open and accessible, there’s no excuse for not using them, or for suspending habeas”

          Huge point !!
          Can you imagine an American soldier reading an enemy soldier his rights?

          • Watson says:

            “Can you imagine an American soldier reading an enemy soldier his rights?”

            In most situations – yes.

            And more importantly, insuring that those rights are respected.

              • Watson says:

                I think that even if we accept the BushCo notion that the battlefield is everywhere forever, the focus should be on whether or not there is practical access to functioning courts.

              • Mary says:

                Which is exactly why Yoo and Goldsmith and Graham et al go with the the “g” in GWOT.

                But it’s also why Milligan is so helpful and explanatory. There, Milligan was taken by the military in a State that was under a declaration of court martial, and yet, it was also a place where no battle theatre was taking place and where civiilan authorities were operating and courts were operating.

                Keep in mind that Padilla’s “capture” was by DOJ in Chicago, not military. That’s kind of the point – that when civilian courts are operating and civilian officers are functioning, we really shouldn’t ever face the issue of imagining soldiers reading rights, bc they shouldn’t be taking custody in that setting. Quirin is pretty sui generis, Milligan is not.

            • bmaz says:

              Well, and as Scalia noted in his “dissent” in Hamdi, this is an especially strong argument when the detained subject is an American citizen and there are open and functioning courts. Personally I would say that is the case wherever he is arrested, but it is especially strong where he is arrested on American soil. Last I checked, O’Hare Airport still qualified. Scalia was dead on the money with his analysis of Milligan and that there was not, and could not have been, a suspension of Habeas. I think this is very solid evidence of the bad faith intentionally lawless attitude Padilla pleads in his complaint.

              • perris says:

                I am surprised scalia is the person that wrote that and at first thought the roberts court would overturn the rulings in this case, scalia’s writing prior though gives me great optimism this case will indeed move forward

                thanx for the info bmaz

            • perris says:

              we know american soldiers respect the rigths of their captives in most cases, we also know that in the past it was that knowledge that induced surrender

              we no longer enjoy the benefit of combatants happy to surrender, for now they know there is torture in the cards

              that is as much the damage as other reasons the bush administration destroyed any hope for a peaceful and smooth transition of power

              and by all accounts, these results were known ahead of time and desired by those making the decisions

  5. TheraP says:

    Thank you, bmaz! This is wonderful news to begin with. But with your masterful post here, it really is the highlight of my weekend!

    RULE OF LAW!

    RULE OF LAW!

  6. phred says:

    Great post bmaz — thanks! I really appreciate all of your effort to translate legal opinions for the rest of us : )

    So now that the judge has found the case may go forward, do we know on what schedule things will proceed? How long might Padilla expect to wait to have his day in court?

    • acquarius74 says:

      phred, right at the end of Judge White opinion he states that Padilla has until July 10 to prepare his amended claims and Yoo has 20 days thereafter to file his response.

      Thanks, bmaz. I had read the ‘whole thing’ and it is wonderful. Frankly, as just a plain, defenseless citizen I feel much better about the threat of unwarranted search and seizure and that I have some actual protection of my constitutional rights.

      I will always remember the name of Judge Stanley S. White!!

      p.s. I liked that phrase Judge White used about “common sense”. tee-hee-hee

      • phred says:

        Mornin’ acquarius — just wanted to pop in quick to say thanks for the dates. I really appreciate it!

  7. RevBev says:

    Thanks for the analysis…as you describe the surgical approach of the Judge, I kept wondering why the lap dog Addington was mentally unable to find anything wrong with the Yoo legal garbage.

    • bmaz says:

      Yeah, I feel almost silly saying that I think Scalia can be had, but it really is my gut, and has been on numerous of these issues we are concerned with for a while. I am probably setting myself up to look like a fool, but there you have it. And it is not just the legal arguments that are infesting my gut either, Scalia fancies himself a great, of all time variety, oracle of the court; I am not sure he would really want the torture cross to bear for history.

    • Peterr says:

      Quoting Scalia is a powerful move. White is daring the appeals court to either disagree with Nino, or to claim that he misunderstood Nino.

      Neither is a comfortable prospect, either for the Appeals Court or SCOTUS.

  8. scribe says:

    Let’s just remember two things:
    1. The denial of a 12(b)(6) motion to dismiss is reviewable on a de novo standard of review, i.e., no deference is owed the trial court.
    2. The denial of a motion to dismiss brought on behalf of a governmental-official defendant on the basis of some flavor of qualified (or, in the appropriate case, absolute) immunity, is immediately appealable as of right. It is an exception to the collateral order doctrine and one of the few flavors of interlocutory appeal allowed.

    Therefore, the Ninth Circuit is going to get this case, pronto.

    • bmaz says:

      Correct, but the key there is that it is the 9th. The opinion is written in a way that literally screams acceptance by the 9th, I truly think White has taken some lessons from Walker and his series of cases in how the opinion is crafted. Maybe I am goofy, but the 9th doesn’t worry me that much irrespective of the standard of review. There is a dynamic infusing th 9th right now, you can almost palpate it. And it is not just me that feels that, there are others that are closer to the action than I at the trial level (although I have some corroborative direct feedback from the appellate level). If they hurry up, they can scrub this through the CCA and be ready for the Supremes in the fall sometime.

  9. fatster says:

    bmaz, I was googling around trying to find a picture of Judge White (and I did), when I ran across this in the process. You mentioned Barry Bonds in a comment on EW’s last article, which was kinda amusing (I’m easily amused).

    “A federal judge told two Chronicle reporters today (Aug. 15) they must comply with a subpoena and tell a grand jury who leaked them secret testimony of Barry Bonds and other athletes ensnared in the government’s steroid probe, the AP reports. The decision by U.S. District Judge Jeffrey White means reporters Lance Williams and Mark Fainaru-Wada (both pictured) must appear before a grand jury investigating the leak unless a higher court blocks the ruling. The pair have said they would not testify and would go to jail rather than reveal their source or sources”

    TUESDAY, AUGUST 15, 2006

    http://tinyurl.com/lhfcd4

  10. Peterr says:

    The last part – “when they perform their duties reasonably” – is the key here. As you might guess, Mr. Padilla does not think that John Yoo performed his duties reasonably (neither do I).

    I agree with Mr. Padilla. A reasonable lawyer, for instance, would be aware of Youngstown.

  11. lurkinlil says:

    thanks, bmaz

    As phred said @6, I also appreciate your efforts to translate legal opinions for the rest of us. My eyes usually start to cross after a few paragraphs of leaglese.

  12. JThomason says:

    Forgive me for stating the obvious but Scalia’s prominently citing Milligan in 2004 as authoritative in regard to the standards of military detention of US citizens certainly highlights the degree of willful neglect Yoo chooses in authoring memos on the subject without mentioning Milligan between 2001 and 2003. Its hard to imagine Yoo being more contumacious or subversive.

  13. victoria2dc says:

    bmaz… beautiful diary from a respected and informed view! Wow. I could totally envision what you said and thank you much for the work you put into reading the ruling and writing this diary!

    Yahoo! Shame on Yoo!

  14. watercarrier4diogenes says:

    Maybe someday Barack Obama will get his finger out of the political winds…

    I’m beginning to wonder where he’s got that finger jammed. I’d easily believe it’s in his ear.

  15. oldgold says:

    Good post. The “causal connection” component could be this case’s
    Achilles’ heel.

  16. gundersonrogers says:

    bmaz,
    What can you share of your legal position and experience?
    I sure enjoy your precision.

  17. BayStateLibrul says:

    Are we in the top of the ninth or the bottom?
    Thanks.
    Can you explain why the Wilson suit against Cheney didn’t follow
    the same route? Didn’t Cheney act “unreasonably” or was it executive
    privelge or just the district court in DC?

    • bmaz says:

      That is a good question, and I think there are a number of factors. To some extent, Judge Bates did follow the same route. I think his analysis was nowhere near the quality of White’s, in fact in a couple of places it was fairly contorted to get to the result of qualified immunity for Cheney et. al. To be fair, it is a distinguishable fact set too in that the ability of a government to classify and declassify its own affairs and employees is a much more murky area of law than the bright line rule for suspension of Habeas and the consequences that flowed therefrom in Padilla. Then, lastly, as you point out, I think you have a very different court; and we are starting to be operating in a different time and place than the DC area was squarely under the Bush/Cheney administration. External factors like that should not affect the performance and direction of courts, but they do..

  18. klynn says:

    Hey,

    Between EW’s last few excellent posts and now this —this is so well written that I think Jane Mayer needs to pay a visit and apologize for inferring bloggers are a bunch of losers in their mother’s basement munching Cheetos.

    No Cheetos dust on your keyboard!

    My favorite part (because it will open the flood gates):

    Indeed the “requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Johnson, 588 F.2d at 743-44; see also Kwai, 373 F.3d at 966 (same).

    Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.

    (my bold)

    Not to mention one of your least favorite persons, but that last line sounds like echos of Comey when he warns about future litigation regarding the memos in his emails. I like how White tells Yoo (and any other government lawyer) just because you are a government lawyer does not mean you can commit malpratice, EP-UE, or not.

    Then bmaz writes:

    …governmental lawyers like Yoo, Bradbury, and Gonzales can be held liable for the foreseeable consequences of unprofessional work. This language must be doubly disturbing to Yoo et. al coming right before the imminent release of the reportedly scathing OPR Report.

    It will be quite interesting to hear the future arguments made by the government lawyers on how Yoo committed misfeasance, malfeasance or nonfeasance of in his professional work, under a duty to act, and, to listen to Yoo defend his professional misconduct or failure to use adequate levels of care, skill or diligence in the performance of the law. Yoo will not be able to get past this issue of liability. Just on this part of White’s opinion, Yoo (and future lawyers) are sinking ships. How will government lawyers defend malpractice regarding Padilla’s rights without also committing malpractice? I do not think there is a government lawyer out there who will be able to.

    Ah, the smell of liability in the face of responsibility to the Constitution.

    This. Is. Good. Very. Good!

    • emptywheel says:

      Mayer was repeating the words of someone else, not saying that herself. She had no problems with bloggers–that I could tell–at the Hillman, though some other journalists there did.

      • bmaz says:

        Yes, at least one of them was pretty belligerent about protecting newspapers from those she viewed as unworthies.

      • klynn says:

        Hey Marcy, I know it was:

        …friend of Brennan’s

        However, her article still reads fine when you pull that section out. She looked for an opportunity to work “that” quote into her piece. For me, as a reader, that infers her own possible bias, or not. I worked a reference to her reference “possibly” to reflect my own bias for your writing as well as bmaz’s posts.

        Just as she was trying to be “tongue-in-cheek”, so am I!

      • scribe says:

        The problem with those journos who have problems with bloggers is several-fold, IMHO.

        1. Bloggers are getting recognition, and the journos are not.
        2. Bloggers don’t have to deal with editors.
        3. Bloggers don’t respect their betters, i.e., the journos. After all, the journos are getting paid for this and the bloggers are not.

        Of course, if the journos were actually doing the grunt work of reading 42 page opinions and digging through Yoo’s twaddle opinions and doing the close reading that allowed finding that KSM was water-tortured 183 times in a month, then they would have a leg to stand on when they moan and groan about bloggers.

    • perris says:

      Just on this part of White’s opinion, Yoo (and future lawyers) are sinking ships.

      please

      let this be so

      that is my prayer

  19. Mary says:

    You know I agree with you on Scalia, to the extent that you are talking about US citizens on US soil – which is the Padilla case. I’m not sure where he will jump on the sovereign immunity issude though, but it’s very nice to see an opinion that actually “remembers” the forgotten standards of
    “reasonable” actions, reasonably within the law, and reasonably foreseeable consequences.

    Has Obama intervened yet on the state secrets front?

  20. Mary says:

    BTW – I still an thinking someone needs to make an attainder claim – that this pre-conviction nonsense is also unconstitutional bc it is attainder (penalties/punishment), a power that is not in the Executive and a power which Congress is prohibited from conferring on the Executive, even by an ex post facto immunities application.

    So the Thiessen reort should be discoverable? And maybe the Geneerals on the things that they said violated the GCs but they didn’t want to put in writing?

  21. DeadLast says:

    …once again the Federal judges in the 9th Circuit and NDCA come riding to rescue of the United States Constitution when our Federal government and legislature will not…

    Damn those West Coast Liberals who are always trying to keep America free!!! They should be forced to kneel down and pray at the Alter of the Unitary and Rightous Executive!

  22. WilliamOckham says:

    I’m a bit amazed that nobody has pointed out the rather delicious irony of a Bush administration official getting sued for violating the Religious Freedom Restoration Act in the treatment of a Muslim detainee. It almost makes that stupid law worth it.

  23. R.H. Green says:

    bmaz

    Let me again state how much I, for one, appreciate your contributions. This clear, concise treatment of one of society’s ongoing controversies is a public service in the genre of Tom Paine. We are all enriched by your analysis that goes beyond the who, what, when of newspaper reporting, as well as that of the others that contribute to the discussion. Of course, there’s someone else that makes all this possible, but this isn’t the Acadamy Awards, and everyone can’t be thanked by name.

  24. ThingsComeUndone says:

    There was a significant new opinion released in the NDCA late Friday (h/t Lindy and Fatster) in the case of Jose Padilla v. John Yoo. The decision is devastating to Yoo and to the thought by the Obama Administration that the American legal system is going to blithely allow them to simply “move forward”

    I admit I was getting worried.

  25. ThingsComeUndone says:

    Yoo might be having a bad day when a Federal judge starts his analysis of your immunity claim by citing Alexander Hamilton from the Federalist Papers.

    The Federalist Papers double points! I can’t wait to hear the GOP explanation why this does not apply.

    • perris says:

      here’s why they will say it does not apply;

      “we are living in differant times”

      there, that should do the trick as far as they’re concerned

      • ThingsComeUndone says:

        Ah the Autocratic/Elitist answer we judge the rules. Justice is Just Us mentality, logically applying the rules is not needed when you have a Decider running things.
        Of course the Decider will swear he never Decided that!

  26. ThingsComeUndone says:

    designated Padilla an “enemy combatant”

    How a US Citizen lost the protections of the law so quick is interesting.

  27. ThingsComeUndone says:

    Exactly right; thank you Judge White. Now there was one minor claim by Padilla that did not survive White’s scrutiny, and, under the factual circumstances, White is probably correct to bounce it. That claim was that Yoo had violated Padilla’s Fifth Amendment right against self incrimination. White reasoned that because there is no allegation in the complaint that Padilla was ever made to be a witness against himself or that his statements were admitted as testimony against him in his criminal case, he did not state a claim for violation of the Self-Incrimination Clause of the Fifth Amendment. Again, a minor claim in the scope of the complaint and an arguably correct denial of it.

    Were statements Jose made under torture used by the government to justify to themselves at least Funny reasons to keep trying to keep Jose locked up?

    • dosido says:

      hello again. :]

      I think Padilla was implicated in some “intelligence” gathered with EIT with one of the Big Fish, Zabudayah???

      not sure. but Padilla already had a US rap sheet, so all the better for creepy torture promoters to test these new found powers on a US citizen.

  28. wigwam says:

    It has been argued that lawyers should not be liable for the good-faith opinions that they offer and that the opinions John Yoo delivered to the White House reflected opinions that he had published academically prior to joining the Bush Administration.

    Others insist that these were not good-faith opinions but part of a conspiracy to commit illegal acts (atrocities in fact) and that he had been tasked to create opinions that would serve as get-out-of-jail cards for members of the Bush Administration. Per Scott Horton:

    In response to this “legal uprising,” David Addington and Alberto Gonzales decided to task John Yoo to prepare memoranda. These memoranda were commissioned with two purposes in mind. First, to protect the policymakers who had authorized torture techniques from future criminal liability (something which Gonzales had identified as early as January 2002 as a serious prospect). And second, to wield the Attorney General’s opinion powers to silence lawyers who had correctly evaluated the legal framework.

    Both of these purposes were wrongful, and inconsistent with the proper use of the Attorney General’s opinion power. Criminal investigators may well conclude that this act joined John Yoo in a joint criminal enterprise with the persons who devised and pushed implementation of the torture policies.

    Indeed, this is not entirely a speculative matter. We will shortly learn in the mass media that some prosecutors have already reached that conclusion and that the preparation of a criminal case is underway.

    I base my conclusions about the facts behind the Yoo memoranda largely on my own investigation including not only the public record, but interviews with a number of figures who dealt with Yoo in the course of delivery of his torture opinions. Only yesterday, I learned from one prominent figure that he had seen repeated drafts of the March 2003 Yoo opinion, had cautioned Yoo on serious errors in judgment and interpretation in the memo, and had strongly urged modification of the memo at least to reflect the contrary viewpoint, even if only to distinguish it. Yoo insisted that he wanted it to be “clean.” He declined to make any of the changes requested.

    Similarly, Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe. In response, Yoo stated that he was crafting his opinion consciously as a bulwark against future prosecution. Indeed, the March 2003 memorandum reflects that he had consulted and secured non-prosecution assurances from the Criminal Division headed by Michael Chertoff. This reassurances did not have their intended affect, however. A good part of his audience believed, correctly, that his attitudes and conduct actually undermined the validity of the opinion and would render it useless in the face of future prosecutions.

    I’m persuaded by Horton’s comments, and I expect them to hold up on court.

    • ThingsComeUndone says:

      Indeed, the March 2003 memorandum reflects that he had consulted and secured non-prosecution assurances from the Criminal Division headed by Michael Chertoff.

      Maybe a RICO case against the entire Bush Justice Dept, White House Lawyers, Cheney and Bush?

  29. Palli says:

    “getting worried” ? I, an eternal optimist, had almost given up,,, These legal opinon excerpts I could actually understand…and what a joy to feel bmaz pleased and encouraged! Thanks and good hope for all of us, especially for that poor young man and what is left of his life….

  30. ThingsComeUndone says:

    Indeed, this is not entirely a speculative matter. We will shortly learn in the mass media that some prosecutors have already reached that conclusion and that the preparation of a criminal case is underway.

    A criminal case is this Christmas? I wonder if Yoo will flip to save his hide?

    • perris says:

      A criminal case is this Christmas? I wonder if Yoo will flip to save his hide?

      unless he has been given inside guarantees, then I gaurantee a flip from yoo

  31. dosido says:

    Lastly (from me) thank you bmaz!!! this is so encouraging to hear. thanks for breaking it all down into bite sized chunks.

  32. perris says:

    bmaz, I hope you are still visiting this diary of yours, I wanted to point out one of the most beutiful aspecs of this ruling, it made my skin rise with admiration, chest swell with pride

    first, again the quote you posted from the federalist papers;

    [War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. [The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).]

    which was great to read but then judge white’s anotation is simple elquence defined;

    The issues raised by this case embody that same tension –
    between the requirements of war and the defense of the very freedoms that war seeks to protect.

    wow

    powerfull stuff right there

Comments are closed.