John Yoo: Much More, and Much Less, Than a “Mere Lawyer”
By: emptywheel Tuesday January 19, 2010 9:33 am
Y00 casts himself here as a mere lawyer, but he was much more (and much less).
So reads the Padilla response to Yoo’s efforts to dismiss Padilla’s suit against him.
Padilla’s team goes on to argue why the 9th Circuit must allow Padilla’s suit against Yoo for violation of his constitutional rights to continue.
The district court’s order should be affirmed. First, the court properly concluded that an American citizen seized from a civilian jail and subjected to years of military detention and torture has a remedy under Bivens. The habeas statute does not extinguish a damages remedy: while habeas can stop an unconstitutional detention from continuing, it cannot remedy an unlawful detention that has already occurred-and provides no relief to a torture victim. Bivens deters unconstitutional conduct, and the Supreme Court long ago affirmed that this deterrence is, if anything, more important when a defendant–even the Attorney General–invokes national security in an effort to preclude judicial review. The need to deter the military imprisonment and tortre of Americans in America strongly counsels providing Padila with a remedy for the serious, systematic and willful constitutional violations.
Second, the district court properly rejected Yoo’s claim to lack causal responsibility.. He set the constitutional violations in motion: as a member of the War Council, he formulated policies of extra-judicial detention and brutal interrogation visited upon Padilla; then, as a government attorney, he provided interrogators with the legal cover they demanded before implementing those policies.
Third, it has long been clearly established that military agents cannot seize a citizen from a civilian jail, transport him to a military prison, detain him there indefinitely and incommunicado without criminal charge or conviction, and subject him to a program of brutal interrogations, sensory deprivation, and inhuman conditions. Y 00 contends that all those rights became unclear when the Executive labeled Padila an “enemy combatant,” but no reasonable official could have believed that the Executive’s unilateral labeling of a citizen would allow it to transgress core freedoms long recognized by the Supreme Court.
They go onto to explain
why lawyers’ conduct must not be immune from liability. If merely being a government lawyer insulates Y oo’s conduct from liability, then there is no limit to what government lawyers fired up with personal “zeal” can counsel: the construction of secret and lawless interrogation sites in American cities, dragnets based entirely on race or religion, the summary execution of American citizens on American streets.
And
note that Yoo tried to dismiss precedents that are directly on point in this suit. Y00 does not cite any case holding that lawyers cannot be held liable for giving knowingly false advice. Instead, he protests that a case cited by Plaintiffs involved “claims against government lawyers for providing intentionally incorrect legal advice.” Br.32 (citing Donovan, 433 F.2d at 744-45). Padila alleges exactly that-that Y00 intentionally misrepresented the law to shield policies that he helped formulate and set in motion, providing legal cover for unconstitutional policies. Like Y00, the government lawyers in Donovan claimed that they had provided advice “in good faith” and that their opinion was based on a reasonable legal belief. But the defendants’ assertions of good faith were factual issues for the jury, not matters for the court even on summary judgment.
Padilla’s team then goes on to remind of the German lawyers prosecuted for war crimes.
Perhaps the most interesting argument in here, though, is the reference to a State Department document asserting that victims of domestic torture have access to Bivens.
Congress has criminalized torture, see 18 U.S.C. § 2340, the President has signed and the Senate has ratified the Convention Against Torture, 6 U.S.T. 3314, under which “(nJo exceptional circumstances whatsoever, whether a state of war or a threat of war. . .may be invoked as a justification of torture,” and the Executive has not only prohibited the use of sensory deprivation, cruel and degrading tortre, and physical or mental torture, Army Reg. 190-8 (criminalizing acts “intended to inflict severe physical or mental pain or suffering”), but plainly stated that a Bivens remedy is available to domestic tortre victims like Padilla, see U.S. Written Response to Questions Asked by U.N. Committee Against Torture
ir 5 (Apr. 28,2006), available at
http://ww.state.gov/g/drl/rls/68554.hrm.8
much more (plus too many links...):
http://emptywheel.firedoglake.com/2010/01/19/john-yoo-much-more-and-much-less-than-a-mere-lawyer/
http://static1.firedoglake.com/28/files/2010/01/100118_Padilla_Response.pdf
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
