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Padilla’s Lawsuit against Yoo to Proceed
by Jacob G. Hornberger

Former Justice Department lawyer John Yoo, who authored some of infamous torture memos for the Bush administration, has just received an adverse ruling in a federal lawsuit brought by Jose Padilla, the American citizen who was incarcerated and tortured for several years by the U.S. military.

Padilla had been arrested on American soil on suspicion of having conspired to commit terrorism. Rather than prosecuting him in federal court on terrorism charges, U.S. officials simply labeled him an “enemy combatant” in the “war on terrorism” and delivered him into the clutches of the Pentagon, which incarcerated him in a military dungeon in South Carolina, denied him a jury trial and due process of law, and tortured him.

The Fourth Circuit Court of Appeals, the most conservative federal appellate court in the country, upheld the government’s enemy-combatant doctrine. When Padilla’s case was reaching the Supreme Court, the U.S. government suddenly shifted him to the status of a federal criminal defendant, notwithstanding the government’s longstanding argument that Padilla was an “enemy combatant” and not a criminal defendant. The reason for the government’s legal maneuvering was obvious: to prevent the Supreme Court from reversing the Second Circuit’s decision.

The significance of the Padilla case is that the government’s enemy-combatant power does not apply only to Padilla but also to all Americans. The government now wields the power to arrest any American on American soil, label him an enemy combatant, and do to him everything that it did to Padilla.

Padilla was ultimately convicted of terrorism in federal district court and is now serving time in a federal penitentiary. But that doesn’t prevent him from suing for the torture, abuse, and mistreatment after his arrest, which is precisely what he did. He sued for one dollar plus a declaration that what the government did to him was illegal and unconstitutional.

The Justice Department, under both the Bush and Obama administrations, has been trying to get the suit dismissed, claiming that Yoo should be immune from suits from American citizens who are subjected to the mistreatment that Padilla was subjected to.

Last week, U.S. District Judge Jeffrey White of San Francisco denied the government’s motion to dismiss, staying that Padilla might be able to prove that Yoo’s memos “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.” The court stated, “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.”

The bad news is that Judge White, who was appointed to the bench by George W. Bush, obviously buys into the war on terrorism paradigm rather than simply recognize that terrorism is a federal criminal offense, not an act of war. In his 42-page opinion, White wrote, “This lawsuit poses the question addressed by our founding fathers about how to strike the proper balance of fighting a war on terror, at home and abroad, and fighting a war using tactics of terror.”

According to the Associated Press, “the ruling rejected the government’s arguments that the courts are barred from examining top-level administration decisions in wartime, or that airing ‘allegations of unconstitutional treatment of an American citizen on American soil’ would damage national security or foreign relations.”

It’s not clear yet what the government intends to do. Ordinarily, appeals cannot be taken from denials of motions to dismiss, but the government might well seek some sort of extraordinary appellate remedy to stop Padilla’s suit from going forward.

The government, however, is in a dilemma. On the one hand, the Justice Department clearly wants to stop the suit from proceeding to prevent Padilla’s lawyers from conducting detailed and extensive depositions, under oath, of Yoo and other high U.S. officials regarding the torture memos and the torture and mistreatment of Padilla.

On the other hand, the Justice Department knows that by seeking appellate review, the case could reach the Supreme Court, something the Justice Department clearly wants to avoid, as reflected by its legal maneuvering in Padilla’s criminal case to deprive the Supreme Court of jurisdiction to overrule the Second Circuit’s decision.

Perhaps that’s why the Justice Department’s on-duty spokesman did not return the AP’s telephone calls or email messages on Saturday.

Jacob Hornberger is founder and president of The Future of Freedom Foundation, publisher of Your Money or Your Life: Why We Must Abolish the Income Tax by Sheldon Richman. Send him email.