Late last Friday, in a development that hasn’t gotten enough attention, a judge appointed by George W. Bush breathed a big breath of life into a lawsuit that seeks to hold John Yoo accountable for the abuse suffered by Jose Padilla , one of the Bush administration’s most notoriously mistreated one-time enemy combatants. I’ve written about Padilla’s suit against Yoo for Slate . When it was filed, Padilla’s lawyers were accused of abusing the legal system by going after Yoo, a sole former Bush lawyer who is on the faculty of Berkeley’s law school. (Disclosure: Padillla’s counsel include Jonathan Freiman, who is a friend of mine, and students in a Yale Law School clinic, where I’m a fellow.) Let’s just say that last week’s ruling by Judge Jeffrey White is a major victory for Padilla and sweet vindication for the lawyers who represent him. The judge rejected all but one of Yoo’s claims of immunity and said that the suit should go forward. His opinion begins by framing the case in terms of the tension “between the requirements of war and the defense of the very freedoms that war seeks to protect.” And then he rejects the government’s claim that national security necessarily trumps Padilla’s claims. This isn’t just a repudiation of the past stance of the Bush administration. It also turns aside Obama’s lawyers, who are fighting hard against Padilla.
What should happen next is discovery - the gathering of evidence to prove Padilla’s claim. If Padilla could actually get access to still-secret memos and other documents relevant to his hellish stay in a military brig, this suit could yield more truth-telling about the Bush admininstration decisions that led to torture. (It already has: three of the Department of Justice memos on torture that the Obama administration released in April were made public because of the suit.)
What’s likely to come first, however, are appeals. Yoo will probably appeal the ruling that he’s not immune to suit. The Obama administration could appeal by asserting, yet again, the blanket state secrets defense. Let’s hope, though, that Padilla gets to start pulling the skeletons out of the closet that has Yoo’s name on it.