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Padilla v. Yoo:

Via How Appealing comes news that Jose Padilla is suing John Yoo. A press release announcing the suit declares:

John Yoo, the author of legal memos that gave the go-ahead for government agents to use torture against terrorism suspects, was sued this morning in federal court in San Francisco. The lawsuit was brought by Jose Padilla, an American citizen seized from a civilian setting and interrogated for years in a military prison, and his mother, Estela Lebron. The lawsuit claims that Yoo, then a senior lawyer in the Justice Department, purported to provide legal justifications for torture. This is the first lawsuit against Yoo seeking to hold him accountable for the suffering unleashed by his 'Torture Memos.' Yoo's memos justified and set in motion the use of harsh and illegal interrogation methods not only abroad -- in places like Guantanamo Bay and the secret CIA 'black sites,' -- but also here in the United States.

The Chicago Tribune provides this additional background on the suit, and How Appealing has posted the complaint here. The complaint only seeks nominal damages and a declaration that Yoo authorized illegal and/or unconstitutional detention policies. Even so, I would be surprised were this suit to get all that far.

James456345634563465 (mail):
Umm...immunity?
1.4.2008 4:06pm
James456345634563465 (mail):
Also, the counsels of record include Jonathan Freiman and Hope Metcalf of Yale Law School, the same institution that brought the frivolous Solomon Amendment lawsuit. Once again, representatives of our country's top law school file a complaint that should go out on 12(b)(6). Shameful (and, I hope, sanctionable).
1.4.2008 4:11pm
J. F. Thomas (mail):
You can't have immumity for illegal acts. That is the root of bringing criminal civil rights cases against law enforcement officers, that they do not have immunity for violating the civil rights of citizens.

As much as I would like to see Yoo tried criminally for war crimes, this is a good start.
1.4.2008 4:12pm
srg:
There is no immunity for what you write in a memo? Really? The author of a memo has not violated anyone's civil rights.

Who is paying for this lawsuit? Does anyone know?
1.4.2008 4:16pm
James456345634563465 (mail):
"You can't have immumity for illegal acts."

I haven't yet read the complaint, but according to the post, Padilla is suing Yoo over the legal advice Yoo gave his superiors at the DOJ. He's not claiming Yoo tortured anyone. Nor is he claiming Yoo advocated or advised the use of torture. He's arguing that Yoo provided faulty legal advice. Immunity should certainly attach to giving legal advice within the executive branch. (Again, I have not read the complaint, so my analysis depends upon the assumptions stated above. If, in fact, Padilla alleges that Yoo was the torturer, that allegation would change my views substantially).
1.4.2008 4:19pm
ejo:
Saudi funded? It seems that there is no shortage of lawyers who will aid even convicted terrorists in this country-the profession should be so proud.
1.4.2008 4:22pm
markm (mail):
James and srg: So you are claiming that if a lawyer advises his client to break the law, the lawyer is immune because it was just "advice"? Or are you claiming some special privilege just for lawyers working for the government?
1.4.2008 4:26pm
Dan Hamilton:
Wasn't Yoo asked to write up the legal status of what is and isn't allowed in the in interrogation of illegal combatents by his boss the President?

Yoo has no power to authorize any policies. He was a lawyer giving a written legal opinion. How is it possible for him to be sued for something he had no power over?
1.4.2008 4:27pm
Anderson (mail):
There is no immunity for what you write in a memo? Really? The author of a memo has not violated anyone's civil rights.

Didn't work for the Nazi lawyers, don't see why it should work for Yoo -- unless we're now going to dismiss Nuremberg as "victors' justice."
1.4.2008 4:27pm
AnonLawStudent:
James,

The complaint is even better than you imagine. Of the four documents cited as Yoo violating Padilla's rights, only ONE appeared under Yoo's own signature; the rest were signed by Bybee.
1.4.2008 4:36pm
Dan Hamilton:

James and srg: So you are claiming that if a lawyer advises his client to break the law, the lawyer is immune because it was just "advice"?


Was Yoo's advice wrong in the law or was it wrong in your opinion?

Was there something wrong with Yoo's reasoning, etc or is it you just don't like his conclusion?

A lawsuit is not the proper place for disagreements over what the law is. Unless the lawsuit is about how Yoo was negalgent(sp) in his work, almost impossible to show.
1.4.2008 4:37pm
deweber (mail):
Anderson: Please read your own cite. The only crime analogous to what Yoo is charged with is charge 1 which was dropped by the panel as being outside their jurisdiction. No one is accusing Yoo of "War crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, plunder of private property." Yoo's actions did not involve the judicial or penal process at all.
1.4.2008 4:38pm
J. F. Thomas (mail):
Was Yoo's advice wrong in the law or was it wrong in your opinion?

Wrong in law. He ignored the existing statutory definition of torture and the International Convention against Torture. And once the memos were leaked the administration quickly repudiated them.

Of course Rumsfeld and Stephen Cambone should also be sued.
1.4.2008 4:48pm
Anderson (mail):
Unless the lawsuit is about how Yoo was negalgent(sp) in his work, almost impossible to show.

Forgetting to discuss Youngstown in a treatment of executive war powers &their limitation by legislative enactment?

You say "almost impossible," I say "childishly easy." In fact, why settle for "negligent"? Willful, wanton, or intentional ...

ALS does have a good point -- Yoo is believed to have penned the Bybee memos, but Bybee should be a named defendant.
1.4.2008 4:50pm
donaldk2 (mail):
"Nazi lawyers"? We've really come a long way here. Reminds me of "Extremism ... is no vice." Saying so doesn't make it so.
1.4.2008 4:50pm
A.S.:
unless we're now going to dismiss Nuremberg as "victors' justice."

Well, of course. Padilla winning the suit would be victor's justice too, given that in our legal system the terrorists have clearly been the victors (which shouldn't be surprising since they have lots of high priced legal talent helping them win).
1.4.2008 4:50pm
Dave N (mail):
I would point out that for prosecutors (and I recognize that Yoo was not acting as a prosecutor), there is both qualified immunity and absolute immunity. Qualified immunity for actions taken that are outside the criminal trial process--absolute immunity for things the prosecutor does during a trial.

On a separate note, I would hate to have a system where giving legal advice is a crime or even a tort (other than being sued by your client for being negligent in the advice you gave).
1.4.2008 4:51pm
Anderson (mail):
deweber: look again, mein freund.

War crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, plunder of private property.

Mutatis mutandis, that's close enough for gov't work.

(N.b. also that the Wiki article is far from a detailed treatment of the Judges' Trial cases -- it's just handy.)
1.4.2008 4:53pm
Noo:
Cf, for example,

Bad Legal Advice

and


OLC Ethics


Also, nobody denies that Yoo wrote the memos signed by Bybee. Otherwise Bybee never would have been confirmed to the Ninth Circuit.
1.4.2008 4:54pm
ejo:
it would be interesting, I suppose, for Padilla to have to testify, something he obviously could not be forced to do in his criminal case. It sounds like they are trying to make a legal malpractice case against him, something I can't for the life of me see how they would have standing to bring (ignoring those little causation problems).
1.4.2008 4:55pm
Just Dropping By (mail):
I would imagine that there is almost certainly some form of immunity applicable here (although I lack sufficient familiarity with the subject to easily identify a supporting case). However, I do know that this isn't a totally off-the-wall claim in regard to the underlying theory of the case. Attorneys acting in a professional capacity ordinarily have no liability to third parties for negligent legal advice except where the advice was specifically intended to benefit the third party. However, if an attorney colludes with his client and provides professional assistance in the commission of unlawful acts, he may be liable for injuries to a third party if he participated in the conduct or profited from it. See Daly v. Smith, 33 Cal. Rptr. 920, 927 (Cal. Ct. App. 1963); Green v. Fischbein Olivieri Rozenholc &Badillo, 507 N.Y.S.2d 148, 152-53 (N.Y. App. Div. 1986) ("Under New York law an attorney generally cannot be held liable to third parties for actions taken in furtherance of his role as counsel unless it is shown that he 'did something either tortious in character or beyond the scope of his honorable employment.' * * * Thus, while an attorney is privileged to give honest advice, even if erroneous, and generally is not responsible for the motives of his clients, admission to the bar does not create a license to act maliciously, fraudulently, or knowingly to tread upon the legal rights of others."). The complaint here in several places accuses Yoo of intentionally acting to deprive Padilla of his rights. If it was demonstrated that Yoo knowingly gave incorrect or incomplete advice for the purpose of depriving Padilla of his civil liberties, then it seems he could be liable under that line of authority.
1.4.2008 4:56pm
Anderson (mail):
donaldk2, reading is fundamental. I said: "Didn't work for the Nazi lawyers." Are you denying the existence of Nazi lawyers?

given that in our legal system the terrorists have clearly been the victors

Um, in what alternate universe is that a true statement? Who are these legally-victorious terrorists?
1.4.2008 4:56pm
James456345634563465 (mail):
"Wrong in law."

I want to make sure I understand your reasoning. Let's say a small county in the south wants to add a franchise obstacle. Because it is covered by the VRA, it petitions the DOJ for approval. The DOJ attorney tasked with the legal research gets the law wrong. Relying on his research, his superiors approve the change, and some voters are thereby turned away from the polls on election day. Should the lawyer be subject to civil liability?
1.4.2008 4:56pm
Just Dropping By (mail):
A lawsuit is not the proper place for disagreements over what the law is.

The totality of the past several hundred years of Anglo-American jurisprudence would seem to stand for the opposite proposition.
1.4.2008 4:58pm
Anderson (mail):
Regarding the immunity argument, I agree there should be a high bar here. Lawyers should be free to offer good-faith advice.

However, the very importance of the OLC's opinions makes it particularly undesirable, as a matter of public policy, that *absolute* immunity be granted. If the legal advice offered is demonstrably not in good faith -- and I might even entertain a "clear and convincing" burden of proof here -- then the public certainly has an interest in seeing such lawyers punished, and OLC lawyers certainly need to be aware of such possible sanctions when they're drafting their memos.

As anyone who's read the memos can attest, the utter lack of lawyerly CYA -- the disregard of contrary authority -- the sheer amateurism, in the product of a man who's supposedly a top-notch scholar -- clearly bespeak a desire to affirm a particular conclusion without any concession to the lawyer's duty to fully advise his client.
1.4.2008 5:02pm
davod (mail):
Wouldn't his work be covred by executive privilage.
1.4.2008 5:04pm
deweber (mail):
Two things:
First the definition of torture
18 U.S.C. § 2340A (2000).
10
Section 2340 provides in full:
As used in this chapter—
(1) "torture" means an act committed by a person acting under color of law specifically
intended to inflict severe physical or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting
from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of
mind-altering substances or other procedures calculated to disrupt profoundly the senses or
the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical
pain or suffering, or the administration or application of mind-altering substances or other
procedures calculated to disrupt profoundly the senses or personality; and
(3) "United States" means the several States of the United States, die District of Columbia,
and the commonwealths, territories, and possessions of the United States,

Anyone who thinks the word severe above is well defined needs more experience on this blog. You was attempting to define it. You may disagree with his choice. But it is clear that his choice is within the compass of the word and not outside of it.


Anderson: Sorry that is not close enough for government work, certainly not for the judicial process. Yoo's action were not within the judicial process at all. His were advice on the law. He filed no suit. He came before no judge. He only wrote a memo to his boss. Nope, I would think even the worst of lawyers would have a hard time pushing that charge to apply to Yoo's work. If you disagree, please describe how what he did was "abuse of the judicial and penal process".
1.4.2008 5:04pm
James456345634563465 (mail):
Forgetting to discuss Youngstown in a treatment of executive war powers &their limitation by legislative enactment?


Remind me, once more, of Youngstown majority's holding?

While I agree that a diligent lawyer would likely drop a footnote to the commonly cited passages from Jackson's concurrence, an attorney could reasonably neglect to cite a case as fragmented, aged, and fact-specific as Youngstown.
1.4.2008 5:04pm
Adam J:
ejo- nobody is aiding Padilla, did you not read the part that read "nominal damages"?

There clearly is no immunity- should a attorney be immune for assisting in an illegal act? Attorneys get burned for creating illegal tax shelters for their clients.
1.4.2008 5:05pm
Anderson (mail):
James, the allegation here is that the lawyer in question would have disregarded major authority that would be contrary to the obstacle in question, authority that no competent lawyer could be expected not to know about, and permitting the conclusion that the lawyer deliberately sought to mislead his (non-lawyer?) superiors about the legality of the obstacle.

Should that lawyer be subject to civil liability? Why the heck not?
1.4.2008 5:08pm
BRM:
How does Padilla have standing to seek a declaratory judgment that the torture is unlawful? Where is the redressability? If the answer is that he will benefit because a favorable declaration would protect him from future torture, how different is that claim from seeking an injunction as in Los Angeles v. Lyons? Would the standing analysis be different because a declaratory judgment is not binding through contempt actions the way an injunction is? What value is there (to Padilla) in a declaration that Padilla's constitutional rights were violated?
1.4.2008 5:09pm
Anderson (mail):
While I agree that a diligent lawyer would likely drop a footnote to the commonly cited passages from Jackson's concurrence, an attorney could reasonably neglect to cite a case as fragmented, aged, and fact-specific as Youngstown.

Pooh. Look in any con-law textbook. Youngstown is a problematic precedent, but it's what we've got, and it's where you go to discuss these issues. Distinguish it, limit it, whatever, but you can't *ignore* it. Certainly, the Supreme Court hasn't. And that certainly includes Jackson's concurrence.
1.4.2008 5:12pm
qwerty (mail):
Why is the mother a party? How did Yoo violate her constitutional rights?
1.4.2008 5:16pm
ejo:
"there clearly is no immunity" I did learn that when an opponent uses the word "clearly", it usually means they either don't know what they are talking about or the issue is anything but clear. getting past that, if the guy is representing Padilla, he is representing Padilla. Is that what amounts to "radical chic" at Yale like Tom Wolfe wrote about with the Black Panthers back in the '60's?
1.4.2008 5:16pm
DangerMouse:
Sounds to me as if this is just a way of making "conservative" legal interpretations illegal.

So if any lawyer gives advice that a liberal doesn't like, because the liberal is harmed by that advice, he can sue. Right?
1.4.2008 5:20pm
ejo:
perhaps the mother should be a co-defendant for raising a piece of garbage son who traitorously turned on his country and was seeking to kill its citizens. then again, this appears to make him the apple of the Yale Law School grad's eye-do they admire him because of the courage of his convictions or just hate this country?
1.4.2008 5:24pm
Lior:
@Dave N:
On a separate note, I would hate to have a system where giving legal advice is a crime or even a tort (other than being sued by your client for being negligent in the advice you gave).


Lawyers usually support making everything actionable. Would you also hate a system where giving medical advice is a tort? What about engineering advice? Certainly giving reasonable advice is not a tort, even if there may be disagreement about the "true" state of affairs. Reasonable doctors may disagree on the prognosis or best treatment of a patient, and the one who turned out to be wrong shouldn't be sued for it (but tell the lawyers!). On the other hand, giving clearly wrong legal advice to a client should make you at least somewhat culpable for their resulting conduct.

As others noticed, it's odd to sue Yoo for giving bad advice without filing suit against the people who acted on his advice. Can he argue that essential parties have not been joined?
1.4.2008 5:27pm
Tony Tutins (mail):
Why not attempt to prosecute Yoo for helping violate Padilla's civil rights under color of law? And why doesn't the University of California sanction Yoo? Surely enabling the government to torture suspects must throw the UC system into disrepute, even though it doesn't seem to violate the Faculty Code of Conduct.
1.4.2008 5:28pm
AnonLawStudent:
Lior,

The difference is one of duty. If you hire a doctor, or engineer, or lawyer to render advice to you, you are paying for his expertise, and he is liable to you for damages. It's much more problematic to grant a third party standing to sue any of the above. Off the cuff, where standing is found in those cases, it tends to be either (i) standing-in-the-shoes of the person to whom a duty was owed, e.g. wrongful death, or (ii) a known third party beneficiary, e.g. engineering of a building. I do realize that their are counterarguments, but I find it highly problematic for a citizen to have standing to sue over advice rendered to the President. Moreover, as Anderson pointed out, the caselaw in this area - the power of Congress to regulate the conduct of the President as such - is fairly thin; I would also point out the still-unresolved legality of the War Powers Resolution 30 years after its passage. On the merits, one would have a hard time asserting that ANY advice was negligent.
1.4.2008 5:39pm
Dave N (mail):
AnonLawStudent,

I started mentally drafting a response to Lior's question and you did it for me. Thank you. You did a better job than I could have.
1.4.2008 5:51pm
Anderson (mail):
Can he argue that essential parties have not been joined?

The problem for plaintiffs, I have just decided on Prof. Kerr's parallel thread, is that the "essential parties" are difficult to get past the qualified-immunity stage with.

If they can depose Yoo and get him to say "basically, I was told to justify torturing these people", then it might become a whole lot easier to add whoever told him that.

Tony's otherwise excellent suggestion, which I take to be for a Bivens action, perhaps founders on the causation issue that Prof. Kerr identifies. That's why I suspect this suit is about getting to Yoo's superiors.
1.4.2008 5:51pm
wm13:
Well, Tony Tutins, I guess the University of California should discipline Yoo about the time Yale disciplines the law professors who brought the frivolous Solomon Amendment claim. I mean, when you lose 8-0 in the Supreme Court, that's pretty incompetent.
1.4.2008 5:52pm
Anderson (mail):
I do realize that their are counterarguments, but I find it highly problematic for a citizen to have standing to sue over advice rendered to the President.

I think that argument would probably garner 5 votes on the high Court, which is not quite the same as saying I agree with it.

For the policy reasons I've cited, I think an OLC lawyer *should* be subject to sanction for grossly negligent legal advice. I am open to the argument that a civil action isn't the proper sanction, but what else is there?
1.4.2008 5:53pm
Anderson (mail):
Well, Tony Tutins, I guess the University of California should discipline Yoo about the time Yale disciplines the law professors who brought the frivolous Solomon Amendment claim. I mean, when you lose 8-0 in the Supreme Court, that's pretty incompetent.

wm13, you are too smart to believe anything that dumb. 9-0 cases get decided all the time in the Supreme Court - that does not make them frivolous, or their lawyers incompetent.

If you're going to call a resolved lawsuit "frivolous," then please point to the court order deeming it such and imposing sanctions on the frivolous party. Otherwise, please don't debase a term of art.
1.4.2008 5:55pm
Kazinski:
What is so controversial about Yoo's memo? He addresses two main subjects in it, first he says that the interogation techniques do not violate US law, because the techniques are not "specifically intended to inflict severe physical or mental pain or suffering". I do not think waterboarding or belly slaps exceed that standard, and whether you disagree or not, it is a defensible position to take.

The second part of the memo discusses whether the ICC, to which the US is not a party, would have jurisdiction and be able to impose it's own definition of torture on the US. I'd say it is a non-controversial position that the ICC does not have jurisdiction because Presidents Clinton, Bush and the collective wisdom of the US Senate insured that would be the case.
1.4.2008 5:57pm
EH (mail):

DangerMouse:
Sounds to me as if this is just a way of making "conservative" legal interpretations illegal.

So if any lawyer gives advice that a liberal doesn't like, because the liberal is harmed by that advice, he can sue. Right?

Yes, I'm sure that's exactly what's going on. Just one step beyond what tripped up Tom DeLay, "the criminalization of politics," no?
1.4.2008 5:57pm
ejo:
the Solomon Amendment lawyers were against this country and its armed forces. that puts them on the side of angels.
1.4.2008 5:57pm
AnonLawStudent:

I am open to the argument that a civil action isn't the proper sanction, but what else is there?


He or she can be fired.
1.4.2008 6:02pm
James456345634563465 (mail):
"He or she can be fired."

Beat me to it. If someone does bad work, he can be warned, written up, demoted, or even fired. His employer can refuse to recommend him to prospective employers.
1.4.2008 6:08pm
wm13:
Anderson, I said, in response to Tony Tutins, that it would just as appropriate for the University of California to sanction Yoo as it would be for Yale to sanction the professors who challenged the Solomon Amendment. So you respond in high fury that those Yale professors should not be sanctioned. Which was, you know, my point.
1.4.2008 6:14pm
Oren:
the Solomon Amendment lawyers were against this country and its armed forces. that puts them on the side of angels.
Firing competent Arabic language speakers because of their sexual preferences puts our soldiers at increased risk and ultimately undermines our country more than buttfucking ever will.

Furthermore, urging the President to violate the Supreme Law of the Land (Convention Against Torture, Art VI) is fundamentally contrary to the Constitution and the entire basis of our polity.
1.4.2008 6:21pm
James456345634563465 (mail):
Furthermore, urging the President to violate the Supreme Law of the Land . . . is fundamentally contrary to . . . the entire basis of our polity.


So is buttfucking.
1.4.2008 6:31pm
Oren:
Why don't we ask the soldiers (who were in '03 and '04 very short on translators) whether they would prefer to have a gay translator or none at all?
1.4.2008 6:37pm
WHOI Jacket:


As silly as the whole thing was, I don't think there was an epic crisis of Farsi/Arabic Translator ejections.



For some reader followup.
1.4.2008 6:50pm
WHOI Jacket:
and my links are broken.

http://www.opinionjournal.com/best/?id=110010466#tongues

http://www.opinionjournal.com/best/?id=110010471
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1.4.2008 7:22pm
CrazyTrain (mail):
Also, the counsels of record include Jonathan Freiman and Hope Metcalf of Yale Law School, the same institution that brought the frivolous Solomon Amendment lawsuit. Once again, representatives of our country's top law school file a complaint that should go out on 12(b)(6). Shameful (and, I hope, sanctionable).

You obviously are not familiar with Rule 11 and other bases for the federal courts to impose sanctions. Losing on a 12b6 does not itself justify sanctions in any way. I believe the Supreme Court got it dead on in the Solomon Amendment case, but the case was by no means frivolous. Indeed, it commanded a majority in the 3rd Circuit, which itself is compelling evidence that it was certainly a "nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law" (FRCP 11(b)). Specifically, it was a reasonably argument for an expansion of the Supreme Court's ruling in the Boy Scouts case (another case I think the Court got wrong). Certainly, the Boys Scouts case did not compel the 3rd Circuit's result -- as evidenced (in part) by the unanimous reversal of the Supreme Court. Nevertheless, there was a nonfrivolous argument for expanding on the principles established in that case to the situation of the Solomon Amendment.

And as to the poster who says that a unanimous reversal in the Supreme Court is evidence of frivolousness, you obviously know zilch about the Supreme Court. The Supreme Court has often unanimously reversed positions that were long adopted by a majority of the federal circuit courts and/or state high courts. In fact, I can think of a case where there was a unanimous reversal of long-standing law, where I think all the circuits agreed on an issue. That you contend that advocating such a position would be "frivolous" shows that you should review your understanding of the English language, and then maybe move on to your understanding of the Federal Rules of Civil Procedure.
1.4.2008 7:36pm
wm13:
CrazyTrain, I don't actually think that unanimous decisions by the Supreme Court prove that the losing argument was frivolous. I also don't think that failing to consider the concurring opinion in Youngstown is the same as being a Nazi. For that matter, I don't actually think law professors should be disciplined for their legal or political opinions. But apparently only the first suggestion upsets you and some of the other commentators.
1.4.2008 8:22pm
John A. Fleming (mail):
Is lawyering an irrational occupation?

An analogy. You're building a bridge, it's a daring design, you hire a P.E. to perform structural analysis. You do due diligence to make sure your P.E. has minimum competence. Your PE performs the analysis, says it's jake. Like most everything in life, the person who most understands the limits and quality of the analysis is the PE. The rest of us have no choice but to trust the PE. He did his job, we do ours, the bridge gets built. Later on, the bridge collapses. The survivors sue the PE for negligence.

The reason you hired one PE is that he/she comes with an understood floor of competence and certainty, so you don't have to hire another unless the first answer is "I don't know".

By its very nature, building new things with existing tools, processes, and analyses, brings risk. Yet the world always changes, so we must keep building new things if we are to survive. We are locked into this path since we climbed down from the trees and started using our brains to reason and make tools, instead of tooth, muscle, and claw.

We never would have had an airplane industry if every time an airplane crashed in the 1940's, the engineers were successfully sued for negligence, for not using 21st-century analysis methods. Especially since all that 21Cen knowledge is based on the accumulation of countless test article failures, and a few tragic in-flight ones.

Knowledge gained is cumulative and iterative, significantly driven by analysis of failures caused by unavoidable lack of knowledge and limits of tooling.

Yet some claim that they know that Yoo was crimminally negligent because he didn't cite X or Y. If that holds, then lawyering is irrational.

You do the best you can with the tools you have right now, within the constraints of time and space. Provided no malingering or deception is involved, trying, failing, and trying again is not negligence, in a rational world.

Yoo is the PE, the daring bridge is fighting terrorism. The changed world is lethally effective non-state actor unlawful combatants motivated by irrational memes. Yoo analyzed whether a type of fastener (interrogation methods) built for a different bridge and world could be successfully used on this one.

If Yoo was so negligent, how did he ever get to OLC? How come those who are so sure now that Yoo was wrong didn't apply and come out ahead in the talent search of a new administration?

Yoo's analysis worked for a while. But over time, evidence accumulated that it was less that complete, less than satisfactory. New opinions have been prepared that improve the situation.

If we also must then punish Yoo for not being as smart in 2001 as VC commenters are in 2008, then lawyering is irrational. Are you sure that's the pyrrhic victory you want?
1.4.2008 8:40pm
Oren:
If we also must then punish Yoo for not being as smart in 2001 as VC commenters are in 2008, then lawyering is irrational.
What if Yoo's lawyering was criminally negligent by 2001 standards?
1.4.2008 9:22pm
wm13:
Oren: Criminally negligent lawyering? You're just making that up, right? (Not that there's anything wrong with making things up, although paying clients of an actual lawyer tend to get annoyed unless they've had a few drinks first.) There's no authority I know of for the concept of "criminally negligent lawyering."
1.4.2008 10:16pm
OrinKerr:
John A. Fleming,

To make the bridge analogy more accurate, you should say that you hire a someone who has theorized about bridge building but never actually designed or even seen a bridge. His theories should be considered bizarre by experienced bridge designers, all of whom should say the bridge will collapse. You should then give the theorist 24 hours to design his bridge and then build it according to his specifications.

As for how John Yoo got the job, you seem to assume that hiring for political positions is based on legal abilities. It is not.
1.4.2008 10:55pm
Point of Fact (mail):
As a policy maker, Yoo probably has immunity. What the lawyers really want to do is get to depose Yoo and have him make crazy statements while under oath. The best approach is to try to get this suit thrown out on a MTD or SJ and for Yoo to be unavailable for a deposition for as long as possible, perhaps as he travels to other countries for his work. If actually deposed, he should take the Fifth, or not recall.
1.4.2008 11:03pm
MarkField (mail):

perhaps as he travels to other countries for his work.


I'm not sure that Yoo is all that anxious to risk being arrested for war crimes. My guess is that he feels much safer here in the loving arms of the Bush Justice Department.
1.4.2008 11:10pm
Point of Fact (mail):
I'm not sure that Yoo is all that anxious to risk being arrested for war crimes.

If you read carefully, it is clear that Yoo would only need to start travelling once the prospect of a deposition was real. That would mean a MTD had failed, which my first sentence strongly suggests I find unlikely.
1.4.2008 11:12pm
John A. Fleming (mail):
Oren:
But no one knows if Yoo's lawyering was crimminally negligent. IANAL, but I think Padilla would first have to demonstrate harm to him (standing?), before he can subpoena all sorts of Yoo OLC work products to fish for possible evidence of crimminal negligence. Provided standing was granted, it would still be hard to distinguish between an incomplete analysis due to limitations of time, staff, talent, training, and expertise, and a willfully negligent or bad faith analysis. My point is: presupposing crimminal negligence, then mounting a fishing expedition to find it, is irrational, backward looking, and a waste of everyone's time. Presuppose honest mistakes, learn how the mistakes were made, modify the processes to avoid them in the future, recognizing that in the future you'll make new mistakes, and some caused by the changes you just made. Padilla and his useful idiots are still trying to fight a war against the USA, by trying to turn our strengths into weaknesses. Let's not let them.

Orin:
You do the best you can with the tools you have available. I'm under no illusion that White House appointees are consistently the best legal minds available. You can't hire them if they don't apply. And who would want such a job: low pay, thankless, long hours, vindictive partisans threatening and trying to ruin your life through subpoenas. That's why I call it pyrrhic. Punishing Yoo to make an example only insures that fools or incompetents will want an OLC job, and the legal advice produced will be useless "on the other hand" pap. The only people who want the job now are career climbers, a White House or Justice job is just a step to somewhere else. I just gotta believe that Yoo made it to OLC based on recommendations of law profs and others who knew him. He wasn't a complete cipher. And the White House isn't going to hire naysayers. We all of us hire lawyers to help us get useful things done, not to obstruct our efforts. Naysayers in any organization are deadly to its efforts.

So where were all these experienced bridge designers when the White House needed them? How come the OLC couldn't tap their expertise? Is the Justice Dept and OLC too insular? Does it need a method to bring in outside, good faith review of difficult legal opinions that won't be perverted by partisanship? Good engineering practices often include bringing in an independent review team for a deep dive on a difficult design problem. Both performing and reviewing engineers just love these deep dives, because they all get smarter and the product is better. Can outside lawyers even be trusted to provide expert legal advice without attempting to influence policy? And if we're now going to sue lawyers for performing legal analysis in an imperfect world, wouldn't competent, experienced lawyers refuse to get involved? Just asking.

And if Yoo's theories were bizarre, that's not sufficient that they are wrong. Bizarre means they are difficult for others to determine if they are correct. So either OLC doesn't have sufficient oversight, or Yoo formed and made it through Law School with his bizarre theories unrecognized and/or uncorrected, or he made them up on the spot. That's still not sufficient to even suggest crimminal negligence. Never attribute to malice what first can be explained by incompetence. And the Federal government, excepting our Armed Forces, is about the most inept organization in our country. Inept governance is not a crime. It's corrected by elections, not prosecution.
1.5.2008 1:14am
OrinKerr:
John A. Fleming writes:
I'm under no illusion that White House appointees are consistently the best legal minds available. You can't hire them if they don't apply. And who would want such a job: low pay, thankless, long hours, vindictive partisans threatening and trying to ruin your life through subpoenas. That's why I call it pyrrhic. Punishing Yoo to make an example only insures that fools or incompetents will want an OLC job, and the legal advice produced will be useless "on the other hand" pap. The only people who want the job now are career climbers, a White House or Justice job is just a step to somewhere else.
I don't mean to be rude, but you really have absolutely no idea what you're talking about. John Yoo's former job, that of Deputy Assistant Attorney General in the Office of Legal Counsel, is one of the most prestigious and sought-after legal positions in the entire executive branch. The question is not who would want the job; the question is who wouldn't want the job. It was a highly prestigious and very sought-after job among legal elites before Yoo, and remains so after Yoo.

More broadly, if press reports are correct, Yoo was given the job and extraordinary power within DOJ because he was willing to tell the White House what the White House wanted to hear. It was no accident that he provided the advice he did: He was there precisely to give that advice, because the White House wanted to do what he said they could do. To use your engineering analogy, powerful individuals within the White House wanted to build a bridge that would fail. So they picked Yoo to design the bridge.

Of course, that doesn't mean that anyone committed "criminal negligence", whatever that means. Providing bad legal advice isn't a crime. But your efforts to compare this to bridge design are based on a deep misunderstanding of the Justice Department and the law.
1.5.2008 2:17am
Lior:
@AnonLawStudent: As others have explained with the bridge analogy, when your client interacts with others based your advice, you also have a duty to them. Do you think that the engineer that designed the bridge only owes a duty to the owner of the bridge but not to users of the bridge?

Say I am a victim of extortion, where the mobster was advised by a lawyer that the racketeering was legal. It would be perverse to allow me to sue the mobster (who ought to have some kind of defence of the type "I relied on the advice of a licensed professional") but not the lawyer.
1.5.2008 2:19am
Oren:
Presuppose honest mistakes, learn how the mistakes were made, modify the processes to avoid them in the future, recognizing that in the future you'll make new mistakes, and some caused by the changes you just made.
I, for one, refuse to accept that a man as smart as Yoo honestly believed some of his zanier theories. Hhe comment about smashing a child's testicles, in particular that defies all explanation. It seems more plausible that he deliberately ignored all contrary authority in order to reach the desired conclusion and I believe that discovery in the case (if it ever happens) will bear me out on this one.

So where were all these experienced bridge designers when the White House needed them? How come the OLC couldn't tap their expertise? Is the Justice Dept and OLC too insular? Does it need a method to bring in outside, good faith review of difficult legal opinions that won't be perverted by partisanship?
Addington pushed him out - there was no shortage of good advice in the OLC, only an unwillingness to listen.

And if we're now going to sue lawyers for performing legal analysis in an imperfect world, wouldn't competent, experienced lawyers refuse to get involved? Just asking.
Part of being a competent lawyer is telling your boss the bad news when the law does not permit what he has asked for. If you have the intellectual honesty to do that, you have nothing to fear.

And the White House isn't going to hire naysayers. We all of us hire lawyers to help us get useful things done, not to obstruct our efforts.
No, we hire to lawyer to learn what we are and are not permitted to do by law. If I ask my lawyer if I can drink and drive, he will tell me this is a bad idea and attempt to obstruct my effort. On the other hand, if I hire a "yes man" to simply tell me what I want, I will get arrested or sued and his advice will have been no help.

Naysayers in any organization are deadly essential to its efforts because their criticism focuses those in charge on the flaws in their plans such that they can be corrected
Fixed it for you.
1.5.2008 2:35am
davod (mail):
"I'm not sure that Yoo is all that anxious to risk being arrested for war crimes. My guess is that he feels much safer here in the loving arms of the Bush Justice Department."

I didn't know Yoo was still working for the government.
1.5.2008 4:50am
davod (mail):
How many US citizens have died because of the strict adherance to international law?
1.5.2008 4:52am
davod (mail):
This issue is blown up out of all proportion because A)lawyers like to talk and write. Talking and writing is how they make money or just get recognized B) there is a lot of money being paid to lawyers and PR flacks by supporters of rat bags, in order to show the US government detainment and interrogation policies in the worst light and C) the era of the fellow traveler and simpleton follower has returned.

Is there no recognition within the legal community for those who write or talk about supporting the US?
1.5.2008 5:08am
Duffy Pratt (mail):

He was there precisely to give that advice, because the White House wanted to do what he said they could do.


On the merits, it seems to me that this is Yoo's best defense. It's pretty plausible that, if Yoo had given other advice than he did, the White House would have ignored it and done what they wanted to do anyway. That's been the Buah Administration's MO anyway.

A similar, but not exactly parallel situation, I think, is the Agent Orange cases. The defense was basically a government contractor defense. The argument was that the chemical companies could not be held liable for delivering what the government ordered. The case could go forward only on the theory that the chemical companies knew stuff about dioxin in Agent Orange, and that they kept it from the government so they could keep the contract.

Similarly, here, I would think that a government attorney could be held liable for his advise only if it was both clearly wrong (and the lawyer either knew or should have known that it was wrong), and if the government relied on the advice in good faith. I think it would be really tough to establish the second part of that test.

On the other hand, I think the clinic would probably be pretty satisfied if they could get some sort of ruling about the advice being clearly wrong, regardless of causation issues. And I doubt they would seriously dislike a ruling that the Administration was hell bent on torturing no matter what Yoo advised, even though that would mean losing the case.
1.5.2008 6:46am
Howard Gilbert (mail):
The case was filed in California nominally because Yoo is a current resident. Normally lawyers get away with venue shopping, but in this case you have the history of a prior Supreme Court decision that the Fourth Circuit had jurisdiction over litigation concerning his detention. The DOJ will probably ask that the case be transferred to the Fourth Circuit, where the courts are familiar with the prior cases, where the alleged injury occurred, and where most of the potential witnesses and evidence are located. Then Padilla v Hanft controls further decisions, and his lawyers will need more than just unsupported allegations.
1.5.2008 9:31am
Bart (mail):
In his book "The Terror Presidency," Jack Goldsmith describes how frivolous lawsuits like this are used by the enemy as a means of asymmetrical warfare against the United States. It is pure madness to allow a traitor and member of al Qeada to abuse the legal system to harass members of the Government.
1.5.2008 10:47am
Bart (mail):
BTW, Padilla is not seeking nominal damages. The purpose of this harassment suit is to force Padilla to pay legal fees for his own defense and legal fees for the harassing attorneys.
1.5.2008 10:50am
Mary Katherine Day-Petrano (mail):
"Umm...immunity?"

When I sue Barry Sabin under the ADA, he will not be able to claim immunity. I can't say anything about the theories of Padilla.
1.5.2008 11:15am
EH (mail):
If actually deposed, he should take the Fifth, or not recall.

Wouldn't a strategy of saying that you don't recall things that you actually do remember rise to the level of perjury?

Punishing Yoo to make an example only insures that fools or incompetents will want an OLC job

Why wouldn't it ensure that qualified and right-thinking, principled people will want the job? False dichotomy, in other words.
1.5.2008 1:42pm
John Steele (mail):
Taking the Fifth when you're the plaintiff typically leads to dismissal of the plaintiff's claims. (Perhaps that's why they added his mother as a plaintiff.) Saying "I don't recall" over and over when you bear the burden of proof often leads to an inability to defeat summary judgment on a particular essential element.
1.5.2008 2:00pm
MarkField (mail):

The case was filed in California nominally because Yoo is a current resident. Normally lawyers get away with venue shopping


Huh? Venue in the NDCA is not "nominal", it's where venue actually is under 1391 (b)(1). Whatever the merits of the case, filing in the NDCA is not "shopping" for venue.
1.5.2008 2:20pm
John Steele (mail):
Mark,

I agree that "proper venue" isn't "venue shopping." The plantiffs allege that they had the option of filing for the SF Division or the Oakland Division, and they went for SF.

The time stamped complaint, avaiable at Opinio Juris, shows that they drew Magistrate Judge Maria-Elena James. Normally, a party can decline the assignment of a magistrate judge and insist upon an Article III judge for the substantive stuff. It'll be interesting to see how it's played out. A profile of her is here.
1.5.2008 3:03pm
Thomas_Holsinger:
You have overlooked the wonderful indemnity claims which arise from the complaint's legal reasoning. If advice gives rise to liability, Yoo could claim indemnity from all of his instructors going back to pre-school.
1.5.2008 3:06pm
Oren:
Is there no recognition within the legal community for those who write or talk about supporting the US?
Some of us consider upholding the Constitution and the rule of law to be the higher form of patriotism than mindless support for the policy-du-jour.
1.5.2008 4:20pm
Randy R. (mail):
Bart: " It is pure madness to allow a traitor and member of al Qeada to abuse the legal system to harass members of the Government."

Where is there any evidence that Padilla has been either?

Davod: "How many US citizens have died because of the strict adherance to international law?"

I don't know. How many US citizens have had their lives saved because of strict adherence to international law?

Or better yet, why don't we just chuck the entire US constitution because, hey, all those rights people have just get in the way of executing people we don't like.
1.5.2008 10:37pm
davod (mail):
Randy R:

Of course the only possible interpretation is your interpretation.

How silly of me.
1.6.2008 5:52am
James456345634563465 (mail):

Why wouldn't it ensure that qualified and right-thinking, principled people will want the job?


I like to think of myself as a "qualified and right-thinking, principled" person. But I would not take a job giving legal advice in a political branch of government if I knew ideologues who disagree with my reasoning or conclusions could sue me over my work in federal court. If I do bad work, I expect that some consequences might naturally follow: I could get reprimanded, demoted, or fired. I would never expect to be subject to civil liability, however.
1.6.2008 11:53am
Oren:
James - you can't get sued by someone that merely disagrees with you. As we've said over and over on this blog, civil liability kicks in (or ought to kick in) at the point where you abandon your duty to interpret the law in good faith and start justifying whatever your boss wants regardless of the actual legality.

Actually, getting demoted, fired or reprimanded by your boss for not giving in to his blatantly illegal requests (read: Comey) ends up getting you more respect than being a yes-man anyway.
1.6.2008 2:48pm
Hans Blix:
Gentlemen, best to ignore "Oren" and "Randy" - who seem to be titillated either by how often they can fit buttfucker into a sentence or by demonstrating their true "Patriotism" whilst answering questions with questions, so profound as "I don't know. How many US citizens have had their lives saved because of strict adherence to international law?" (Of the cuff I'd say, oh, maybe ten. Int'l law sure hasn't prevented anyone caught by the Islamists from having their heads sawn off.)

Padilla is a convicted terrorist; a jury of his putative peers found him guilty. Legal questions and the merits of this case aside I don't give a damn about what happens to him. With the recent challenge to lethal injection being raised before the nine, it's time for states to simply to bring back the firing squad, which I believe the Sup. Ct. has already ruled is constitutional. Enough of this constant braying and cud chewing.
1.7.2008 10:51pm
Oren:
Glad to know you feels so great insulting my patriotism Hans.

I don't understand, however, why the moral rectitude of terrorists ever gets into the discussion. Padilla is clearly scum. Unfortunately the founders, in their infinite blunder, wrote us a Constitution that gives rights to all citizens, scum included. So when Yoo steps all over the Constitution to get at scum like Padilla, I have to conclude that they are both threats to America.

Likewise, you'll have to agree that our founders really screwed the pooch by dictating that all treaties duly passed become supreme law of the land. Whether or not Int'l Law saves lives is irrelevant - the Constitution clearly requires that we respect the treaties that we sign &ratify and that's that.

Of course, if you don't like the dictates of the US Constitution you are free to move elsewhere. Don't let the door hit you on the way out.

PS. What is the serious hang up with sodomy in this crowd? I thought liberal arts majors were supposed to get plenty of action and yet folks get so uptight you could tune a violin by 'em.
1.7.2008 11:55pm
Anon The Second:

If Yoo was so negligent, how did he ever get to OLC? How come those who are so sure now that Yoo was wrong didn't apply and come out ahead in the talent search of a new administration?

As indicated elsewhere in this thread, the job was a highly sought job, available only to highly qualified people. The fact that Yoo's opinions were so completely wrong and that they were almost immediately withdrawn by the next chief is probably the best proof that (a) Yoo issued intentionally wrong opinions, and (b) everyone knew that Yoo was intentionally giving wrong advice. The arguments are: Given his qualifications, Yoo could not have been so wrong except intentionally. The actions of the next chief (and the guilt-laden book he subsequently wrote) are the proof of this pudding.

Yoo took the job at Boalt in Berkeley after he didn't succeed in replacing his boss (it has been reported that everyone agreed Yoo shouldn't be exposed to confirmation hearings, probably because everyone wanted to avoid any public exploration of Yoo's advice, which would inevitably focus on whether Yoo knew his advice was wrong). The real miracle here is that there have been no public protests directed at Yoo at Boalt Hall, no picketing of his courses, etc. Another miracle is that no one has moved to disbar Yoo on the grounds of his failure to support and defend the Constitution (as outlined elsewhere in the thread). We can only hope that things at Boalt and the bar associations will change soon.
1.8.2008 1:50pm