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Luban on Padilla v. Yoo:

Over at Balkinization, David Luban has an extensive post on the issues and non-issues in Padilla v. Yoo.

wm13:
Extensive and tendentious, I would say.
1.14.2008 9:23am
PersonFromPorlock:
Balkinization commenter DePalma says:

There is no evidence that any of these allegations of "torture" are true except for the claims of a liar and a traitor, who is a member of a terrorist organization whose manuals teach their members to falsely allege torture if they should be captured.

Am I wrong to be reminded of the response during the Clinton years, that because the accusations against Clinton weren't proven, there was no justification for investigating them?
1.14.2008 9:42am
Bruce Hayden (mail) (www):
I found it weaker than some of the pro-Padilla arguments here at volokh.com. I did find the argument about German attorneys being prosecuted for their advise interesting, but in the end, I doubt that that precedent will have that much force. But othe than that, I was unimpressed.
1.14.2008 9:53am
Bruce Hayden (mail) (www):
Am I wrong to be reminded of the response during the Clinton years, that because the accusations against Clinton weren't proven, there was no justification for investigating them?
I would suggest that this is comparing apples to oranges. At the time, Clinton was the president. Currently, Yoo is a law professor, and Padilla is an admitted traitor and illegal combatant, who is going to spend most, if not all, of the rest of his life at a SuperMax prison, thanks to his citizenship, instead of Gitmo and remand to Afghanistan.

If Clinton had been found lying, he might have been impeached. But if Yoo is found to have given an inaccurate opinion, then what? Or, if Padilla is found to have been sleep deprived, then what? Are official policies going to be changed? Will Yoo be run out of the government? Will he actually have to pay anything beyond his attorneys' fees? Will Padilla get off?
1.14.2008 10:03am
AF:
Bruce Hayden: Are you suggesting that because Padilla is "a traitor and illegal combatant," he doesn't have constitutional rights, despite being an American citizen who was detained on American soil?
1.14.2008 10:30am
PersonFromPorlock:
Did I miss it when Padilla admitted to treason and being an enemy combatant?
1.14.2008 11:20am
PersonFromPorlock:
Whoops, "enemy combatant" should have been "illegal combatant."

Incidentally, Clinton was caught lying and was impeached. Then the Senate decided not to look into it further because the indictment didn't 'prove' his guilt, which gets back to my original point.
1.14.2008 11:30am
M. Gross (mail):
I did find the argument about German attorneys being prosecuted for their advise interesting, but in the end, I doubt that that precedent will have that much force.

The "Conspiracy to Commit War Crimes" count was thrown out... none of the defendants were convicted of this offense.

From the blog post in question:

although this is a tort suit and not an ethics complaint, it is worth noting that ethics standards forbid lawyers from from counseling or assisting clients in conduct the lawyer knows is illegal. Of course, John Yoo claims that he "knew" nothing of the sort, and continues to defend not only the good faith, but the legal validity of his widely-castigated opinions. How much to credit assertions of good faith would be a task for a fact-finder.)


Yeah, I think proving he argued in bad faith is going to be problematic.
1.14.2008 11:47am
WHOI Jacket:
Can I sue government economic advisers for "advice" that leads to bad fiscal policy, impacting my finances?
1.14.2008 1:08pm
Oren:
Padilla is an admitted traitor and illegal combatant


Objection, inadmissible (ridiculous should also work here). It's entirely circular to argue that we shouldn't trust his allegations that he was tortured because he confessed to something while allegedly being tortured!
1.14.2008 2:15pm
Dilan Esper (mail) (www):
Also, remember that it is still illegal to torture Padilla even if he is everything the Government says he is.
1.14.2008 2:59pm
CrazyTrain (mail):
Padilla is an admitted traitor and illegal combatant

When did he admit that he was a "traitor"? And if he did, under what circumstances?

When was he found to be, or admitted to be, an "illegal combatant"?

The lack of outrage by people over what happened to Padilla is shocking. He is a US citizen who was detained on US soil. He was then locked up for close to 5 years without any process. These actions are obvious violations of the Constitution, and of the basic principles of a free society.
1.14.2008 3:00pm
Randy R. (mail):
There is no outrage because he is an unknown and a minority. If he had been, say the child of a Dick Cheney or an O'Reilly, you can bet there would be outrage.

And, as many commentators here have shown, they have convinced themselves he is a traitor and combantant, who wanted to kill lots of Americans, and is generally a really bad guy -- based on nothing more than the gov't's say so. So thereofore, any form of torture is too good for him.

The trust people have in gov't is another outrage.
1.14.2008 3:24pm
EH (mail):
I find it telling that so much of the criticism of (against) this suit depends on ad hominem and apologia. Doesn't Yoo have any strengths at all here?
1.14.2008 3:28pm
Oren:
And, as many commentators here have shown, they have convinced themselves he is a traitor and combantant, who wanted to kill lots of Americans, and is generally a really bad guy -- based on nothing more than the gov't's say so.
Once again, too far Randy. Padilla is quite probably Qaeda scum that came to the US to kill American civilians. I don't see that as at all contradictory with my position that he deserves treatment according to the norms of civilized society.
1.14.2008 5:03pm