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Legal Commentary

: Balkinization

Padilla v. Yoo

By Jack M. Balkin

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Judge Jeffrey White's recent decision (available here) allowing Jose Padilla's lawsuit against John Yoo to continue has several remarkable findings. White was appointed by President George W. Bush, so it's safe to assume that he is not a flaming liberal.

Padilla is bringing a Bivens suit against Yoo for authorizing extremely harsh treatment of Padilla in violation of his constitutional rights. (Padilla is seeking a declaration that his rights were violated, and he requests damages in the amount of 1 dollar.) Bivens suits are quite difficult for plaintiffs, with a number of presumptions operating against them.

Judge White found that it appears unlikely that Yoo will be held accountable in any other forum (noting that criminal charges are unlikely). Accordingly, in the absence of any other sanction, "litigation may be necessary to ensure that officials comply with the law." Here is Judge White's tart dismissal of Yoo's attempt to create a legal shield for others and for himself:

Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla?s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power.

Judge White then proceeds to knock down every argument Yoo raises in support of dismissing the suit, from deference to the executive to the protection of state secrets.

As is standard practice in a motion to dismiss, Judge White's ruling accepts Padilla's allegations as true. Thus his conclusions are not necessarily an indication of success on the merits of the case (and no doubt appeals will follow). However, many of Padilla's allegations appear to have strong factual support (referring extensively to released DOJ memos written by Yoo), including a number of passages taken from Yoo's own book acknowledging his pivotal role in these affairs (beware the temptations of celebrity).

The most striking of Judge White's findings is his dismissal of Yoo's qualified immunity claim. Government officials are protected "from liability for civil damages insofar as their conduct does not violate any clearly established statutory rights of which a reasonable person would have known." The "clearly established" requirement extends significant protection to government officials.

Yoo argues that he is entitled to immunity because the situation was unique and there was no prior judicial determination indicating that such treatment of prisoners violated their constitutional rights.

White would have none of it. He concluded that the allegations make out a causal connection between Yoo's actions and the harsh treatment Padilla was subjected to ("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.").

And White concluded that the conduct Yoo authorized involved a violation of "clearly established" constitutional rights:

The Court finds that the complaint alleges conduct that would be unconstitutional if directed at any detainee, and therefore finds that the rights allegedly violated were clearly established at the time of the alleged conduct. Hydrick, 500 F.3d at 1001; see also United States v. Lanier, 520 U.S. 259, 271 (1997) (?There has never been a ... case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages.?) (internal citation and quotation marks omitted).
The Court finds that Padilla alleges a violation of his constitutional rights which were clearly established at the time of the conduct....Therefore, Yoo is not entitled to qualified immunity.

This finding, which entails the conclusion that a reasonable lawyer in Yoo's position should have known that he was authorizing a violation of Padilla's constitutional rights, squarely condemns Yoo (assuming the allegations are proven).

There is no way to dress this up.

Full post as published by Balkinization on June 17, 2009 (boomark / email).