Monday, January 7, 2008

Padilla v Yoo? - my layman's "perspective"

(h/t: Volokh Conspiracy)

Although, legally speaking, this is way out of my base of knowledge, I was intrigued to read that Jose Padilla has filed a lawsuit against Jose Padilla. A press shown on Volokh's site reads:

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.

More at Legal Ethics Forum and Opinio Juris. There are enough legal issues (immunity, whether or not lawyers can be held legally liable for their opinions, causation, etc. etc.) to make my head swim. Ouch!

Look, I may have more than a few rather strong disagreements with John Yoo's legal opinions (nor am I the only one), but given that the prayer for relief consists of $1, attorney fees and "a judgment declaring that the acts herein are unlawful and violate the Constitution and the laws of the United States", nothing more than a judicial rebuke, then why go after John Yoo?

Duncan Hollis' at Opinio Juris writes: naming Yoo alone, it makes this case less about upending the Executive Branch or Justice Department's positions, and much more about attacking John Yoo as a lawyer. Indeed, Padilla and his counsel appear to have made a conscious decision to use this suit as a rhetorical tool. Yoo’s assets aren’t the focus of attention here. I suspect, for example, Yoo will argue immunity and get a government-funded lawyer in his defense (although he may well spend some money to retain his own counsel and maybe those costs could add up). And although a judicial rebuke, however unlikely, of Yoo would have undoubted implications for the President and the Executive Branch, the end-game appears to be much more about shaming John Yoo. Indeed, the prayer for relief suggests a remedy that simply declares that John Yoo was wrong, with the attendant effects that might have on his reputation and standing in the academic and legal communities...

Again, while I may be a fish out of water with regards to the multitude of legal issues I have encountered while reading up on this situation, I don't know if I like the implications here either. Those his legal opinions may have led to the violations of rights of an individual or individuals, he didn't directly order any such actions that would have led to a violation of rights (proximate causation?).

I'm not sure I like where something like this could go. Does this mean that if Lawyer X advises President Y about Issue Z, which Person A challenges in federal court and ruled unconstitutional, that Person A may have a civil claim against Lawyer X (or worse)?

I'm sure I'm missing a few things here (perhaps notable as well), but I'm not comfortable with this. As always, I'm open to suggestions and commentary, especially from people who know this stuff better than I do.

1 comment:

Kris said...

My understanding is that lawyers advise and that it is up to the government officer to either accept or reject the advice. The lawyer is not the decision-maker, s/he is is called counsel for a reason.

It appears to me to be a cheap stunt al la, "let's kill all the lawyers".

I'll eat my wig if this case goes anywhere. Can you imagine?