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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.

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Yale Law Clinic Sues Yale Law Graduate for Bad Lawyering: There's a particularly interesting angle to the Jose Padilla lawsuit my co-blogger Jonathan Adler discusses below: Yale Law School's International Human Rights Law Clinic (representing Padilla) is bringing the suit against a Yale Law School graduate (Yoo '92), for providing bad legal advice.

  Based on the complaint, I don't think Yale Law School ends up looking very good on either side of this one. Yoo's legal analysis was very weak, for reasons we have explored at length here. But I don't think the Yale Law clinic has a strong legal footing, either. First, there's an interesting question whether Yoo would be entitled to absolute immunity or only qualified immunity for the legal opinions he drafted at OLC. My quick look at the cases suggests there's no clear answer to that.

  Second, while I am no expert in civil tort actions, I would think there is a significant problem with causation. As I understand it, the claim against Yoo is that he adopted legal positions in memos that permitted others to perform acts that violated Padilla's rights. I would think that is too far removed to satisfy the causation requirement for a civil tort action.

  UPDATE: Duncan Hollis has some interesting throughts on the case at Opinio Juris.
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Steele on Padilla v. Yoo:

At Legal Ethics Forum, John Steele explores some of the causation and professional responsibility questions at issue in Padilla v. Yoo.

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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.

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Yoo on Padilla v. Yoo:

In today's Philadelphia Inquirer, John Yoo responds to the lawsuit filed against him by a Yale legal clinic on behalf of Jose Padilla.

Walk down Broad Street and you pass by a brown mansion, squeezed in between a music store and a Banana Republic. With its statues of proud soldiers in front, the Union League stands as a symbol of the sacrifices necessary to win the Civil War.

After being sued by convicted terrorist Jose Padilla, I wonder whether our nation today has the same unity and tenacity to defeat the great security challenge of our day, the rise of fundamentalist Islamic terrorism. Even as our brave young soldiers fight in Afghanistan and Iraq, and our intelligence agents succeed in disrupting follow-ups to the 9/11 attacks, terrorists are using our own legal system as a weapon against us.

They use cases such as Padilla's to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress.

"Lawfare" has become another dimension of warfare. . . .

Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks. Padilla and his lawyers want them, from the president down to lowest private, to worry about being sued when they make their decisions. Officials will worry about all of the attorneys' fees they will rack up to defend themselves from groundless lawsuits.

My situation is better than most, since I am a lawyer with many lawyer friends (that is not the oxymoron it seems). I can fend for myself; fine attorneys have volunteered to represent me, and the government may defend me. But what about the soldiers, agents and officers who have to respond to the next 9/11 or foreign threat? They will have to worry about personal liability, hiring lawyers.

Would we have wanted President Abraham Lincoln to worry about his personal liability for issuing the Emancipation Proclamation freeing the slaves (done on his sole authority as commander-in-chief)?

If so, then we will have a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances. These are exactly the conditions that make a nation susceptible to a surprise attack, whether a Pearl Harbor or a 9/11.

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Yoo on Padilla v. Yoo - Part Deux:

John Yoo has a second op-ed on the Jose Padilla's lawsuit against him, this one in the Wall Street Journal.

The lawsuit by Padilla and his Yale Law School lawyers is an effort to open another front against U.S. anti-terrorism policies. If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11. . . .

Worrying about personal liability will distort the thinking of federal officials, who should be focusing on the costs and benefits of their decisions to the nation as a whole, not to their own pockets. Even in the wake of Watergate, the Supreme Court recognized that government decisions should not be governed by the tort bar.

In a case about warrantless national security wiretaps ordered by Nixon's attorney general, John Mitchell, the court declared that executive branch officials should benefit from qualified immunity. Officials cannot be sued personally unless they had intentionally violated someone's clearly established constitutional rights.

The Padilla case shows that qualified immunity is not enough. Even though Supreme Court precedent clearly permitted Padilla's detention, he and his academic supporters can still file harassing lawsuits that promise high attorneys' fees. The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.

The prospect of having to waste large sums of money on lawyers will deter talented people from entering public service, leading to more mediocrity in our bureaucracies. It will also lead to a risk-averse government that doesn't innovate or think creatively. Government by lawsuit is no way to run, or win, a war.

This time Yoo wisely avoids comparing himself to Abraham Lincoln, and the result is a more serious contribution to the discussion of Padilla v. Yoo and its implications.

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