If the Yoo Fits …

Why shouldn’t Jose Padilla sue John Yoo?

John Yoo

Once-upon-a-time enemy combatant Jose Padilla sued former Bush lawyer John Yoo earlier this month. At first, this looks like classic David vs. Goliath. A man convicted on terrorism charges last summer, after years of brutal confinement in a military brig, goes up against a Justice Department lawyer for writing the infamous torture memos that justified detainee mistreatment and for shaping detention and interrogation policy as a member of the inner ring Bush “war council.” Padilla sued Yoo for the abuse he suffered, which included almost two years of being subjected to stress positions and death threats, and being deprived of light and sound and human contact outside of interrogation sessions—the whole grim works.

But the initial wave of reaction to the suit treated Padilla not as the little guy, but as the strong-arming giant. Or if not Padilla himself, then the human rights clinic at Yale Law School—which filed suit on his behalf. Law professor and blogger Jonathan Turley called the filing “highly questionable.” Law professor and blogger Orin Kerr, finding Yale’s involvement in the suit “particularly interesting” and noting that Yoo is a Yale alumnus, wrote, “I don’t think Yale Law School ends up looking very good on either side of this one.” And then the Wall Street Journal really piled on, calling the suit a “political stunt,” “nasty business,” and snidely speculating that Yale Law School Dean Harold Koh must be “proud of suing an alumnus [Yoo] on behalf of a terrorist.”

The clinic blew it, according to these critics, by suing an individual lawyer (and, horrors, a law professor, since Yoo is on the faculty at University of California-Berkeley’s Boalt Hall) just for giving bad legal advice. Lost in all the outrage on Yoo’s behalf—even though it was noted in the first news story about the suit—was the small detail that Yoo is one of many officials being sued for Padilla’s awful treatment. Others include former Defense Secretary Donald Rumsfeld and former Attorney General John Ashcroft. This is not a case of a midlevel official taking the heat while the big guns waltz away. The problem was that the suit against the other guys was filed en masse in South Carolina, while the one against Yoo was filed only against him in California, because that’s where he lives. But if it seemed like a stand-alone, it’s not.

To Padilla’s lawyer at the clinic, Jonathan Freiman, the suit is pretty straightforward. (Disclosure: I went to law school at Yale, and Jonathan is a friend of mine.) Since the 1971 Supreme Court Bivens decision, people who think they’ve been wronged at the hands of a federal official have had a right to sue in federal court. The justices said that “power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting—albeit unconstitutionally—in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” Suits over prison abuse have long put this principle from Bivens to use. Often, they’re filed against prison wardens and guards. But if you think higher-up officials are the ones really responsible for the mistreatment, you can sue them instead.

Freiman’s theory is that Yoo’s torture memos set the gears of abuse in motion by providing the legal justification for it, and that Yoo helped shape the Bush administration’s interrogation policy as well. (Also on the five-member war council: then-White House counsel Alberto Gonzales and vice presidential counsel David Addington.) As law professor and blogger David Luban has put it, reacting to the uproar over the suit, “The basic point of the suit (regardless what you think of its merits) is to hold government officials accountable for torture and prisoner abuse—about as fundamental an issue of core human rights as anyone could possibly find.” Luban also concluded that “any human rights clinic that wouldn’t at least consider filing this lawsuit would be asleep at the switch.”

That’s because there’s nothing outlandish about trying to hold lawyers accountable for actions taken on their clients’ behalf, if those actions can be proved to be illegal. Government lawyers, like other officials, have recourse to immunity. But they’re not necessarily entitled to absolute immunity—the kind that ends a suit before it starts. As Luban explains, the list for absolute immunity is a short one: The president gets it. Judges get it. So do prosecutors. But Justice Department lawyers who aren’t working in a prosecutorial capacity? It appears not. In the 1985 case Mitchell v. Forsyth, a Haverford College physics professor sued former Attorney General John Mitchell for authorizing a wiretap of his phone without a warrant. Mitchell argued that he had absolute immunity because he was working in the interests of national security. The Supreme Court disagreed. The court reasoned that while prosecutors are subject to the checks of the judicial process, there were no “similar built-in restraints on the Attorney General’s activities in the name of national security.”

The court said that DoJ folk might nevertheless be entitled to qualified immunity, which all government officials can seek. The standard here is that you can’t be held liable for working in your official capacity, as long as your actions didn’t violate “clearly established” constitutional or legal rights that a reasonable person would have known about. In other words, you’re protected unless you knowingly violated the law or you were plainly incompetent. The Supreme Court reasoned that qualified immunity would provide most officials with enough protection to do their jobs freely, without giving them a pass to blithely disregard the law. Money quote: “Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate.” (The court’s italics.)

Some of the critics of the Yoo-Padilla suit worry about the effect it will have on other government lawyers. The concern is that they’ll fear being sued and hedge their bets accordingly, even if they’re not doing anything as exotic as embroidering a rationale for torture. But in Mitchell, the court said that sometimes catching a bit of a chill is a good thing. It’s also worth noting, in this context, that Yoo isn’t facing financial ruin or even risk: Following Padilla’s wishes, the suit asks for damages of exactly $1. And DoJ has to offer to provide and pay for Yoo’s defense.

Maybe Yoo’s lawyers will be able to show he is entitled to qualified immunity. Maybe what he did wasn’t illegal, or maybe he shouldn’t have been expected to know that it was, as he would certainly argue. Here’s the defense of his actions that he published today. And maybe the legal advice he gave in the torture memos can turn out to have been wrong—there’s close to consensus about that, at least—without being blunderingly incompetent. It’s also possible that the chain from Padilla’s mistreatment to Yoo’s memo writing and policy-making is ultimately too attenuated to hold him legally accountable.

These are familiar questions—the sort that many a Bivens suit raises. They are also questions for a judge to decide. Arguing that Yoo could or should win is different from denouncing Yale’s clinic for bringing the suit in the first place. And think about the broader implications of the WSJ’s tirade against the law school. The dean should have stopped a clinic from suing an alumnus on behalf of a client? What kind of standard of legal advocacy or academic freedom would that set—faculty members can write whatever they want in academic articles, but clinical lawyers can only file suits vetted for politically palatability? That seems like the entirely wrong place to end up. It’s what comes of mixing up David and Goliath.