Worldview Commentary No. 276 on Chicago Public Radio, 91.5 FM WBEZ

Author: Susan Good

“Padilla v. Yoo: “Lawfare” or Rule of Law?”

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After enduring nearly two years of incommunicado isolation in a tiny cell, during which he was
allegedly subjected to severe sensory deprivation and mental disorientation techniques, utilizing
extremes of temperature, absolute light or dark for periods over 24 hours, loud banging at all
hours of the night, noxious fumes, and shackling and manacling or contortion in painful stress
positions for hours on end, while his interrogators threatened to kill him, US citizen Jose Padilla
is now suing John Yoo, the former Justice Department lawyer whose legal advice authorized this

As a result, Padilla and his lawyers at the Yale Law School clinic are castigated by Yoo for
waging “lawfare” – which Yoo calls “another dimension” of the terrorist war against the US. In a
Philadelphia Inquirer op-ed, Yoo – whose legal opinion okaying this barbarity was so ill-advised
that the Justice Department had to revoke it – complains that the Yale lawyers invent “novel”
legal theories to harass him.

If their legal theories are indeed novel, Yoo has himself to thank: never before has the Justice
Department sanctioned the infliction of prolonged, mind-altering brutality on a US citizen.

Still, suing a government lawyer for rendering legal advice, no matter how injudicious, gives
pause. Such lawsuits could deter creative thinking by lawyers endeavoring to protect the public.
If such suits are to be allowed at all, they should be confined to rare and extreme cases — such as
the John Yoo torture memos.

There are limits on what advice lawyers may give. After World War II, German government
lawyers who wrote memos and orders depriving Russian prisoners of war of their Geneva
Convention protections, and authorizing the forced disappearances of political prisoners under the
“Night and Fog” decree, were convicted at Nuremberg.

If, like John Yoo, they had instead authorized torture of prisoners, would they have been any less

But what if the German lawyers had proposed only less serious violations? Although the suit
against Yoo does not seek to convict him of a crime, it does aim to hold him civilly liable – for a
symbolic one dollar in damages – not only for the torture, but also for his legal advice that
allegedly led to violations of Padilla’s constitutional rights to counsel, access to court, due
process of law, freedom of religion, rights to information and association, and his rights to be free
from inhumane conditions of confinement, cruel and unusual punishment, coercive interrogations
and improper military detention.

In pressing these wide-ranging claims, Padilla’s lawyers face daunting legal obstacles. To begin
with, no law authorizes their lawsuit. Padilla’s claims rest directly on the Constitution. While the
Supreme Court has authorized suits for damages based solely on violations of the Constitution, it
does so sparingly — when the violations are not otherwise subject to judicial or effective
oversight, and even then, only if no special factors weigh against the wisdom of creating a new
cause of action.

To date the Court has allowed constitutional damages claims (called Bivens claims for the case
that invented them) only for violations of the Fourth Amendment right against unlawful search
and seizure, the Fifth Amendment right against employment discrimination, and the Eighth
Amendment right not to be subjected to cruel and unusual punishment by prison officials.

Thus, only one of Padilla’s claims – under the Eighth Amendment – has arguable Supreme Court
precedent. Some claims may fall on the ground that they are subject to judicial oversight in the
criminal proceedings against him; others may be rejected because they deal with grey areas of
national security law, where legal mistakes should not result in damages suits.

But Padilla should probably be allowed to take to trial at least his core claims – that the torturous
confinement and interrogation techniques violated his Fifth Amendment rights to due process,
and possibly his Eighth Amendment rights. To the extent the prosecution in his criminal trial did
not rely on any resulting coerced confession by Padilla, these alleged violations have not been
subject to judicial oversight.

If Padilla overcomes this hurdle, others remain. Yoo may contend that he is entitled to absolute
immunity, as are prosecutors when presenting their cases to a court. But Yoo more likely will be
granted only the “qualified immunity” afforded to prosecutors when they advise police on
interrogation techniques, or to the Attorney General when he authorizes national security wiretaps
without a judicial warrant.

If Yoo is granted qualified immunity, then he can be held liable for his erroneous legal advice
only if it violated “clearly established statutory or constitutional rights of which a reasonable
person would have known.” It plainly did: Yoo’s memo provided legal authorization for torture.

But the issue is not so simple. Yoo’s central legal rationale is that the President’s powers as
commander in chief give him constitutional license to override any law, including laws against
torture, if he deems it necessary to wage a war. The courts may thus need to consider whether
any reasonable lawyer could advise that the Constitution allows the President to disregard all law
in wartime.

Finally, the government might decide to assert the “state secrets” privilege to quash Padilla’s
claims, on the ground that they cannot fairly be adjudicated without probing secret intelligence
methods and communications.

Unless barred by the state secrets privilege, Padilla’s suit will likely break new ground. Far from
a case of “lawfare,” it promises to strengthen the rule of law, by clarifying whether and when
government lawyers can be held accountable for the potentially far-reaching consequences of illconsidered
legal advice.

Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the
Worldview program on Chicago Public Radio, 91.5 FM, and rebroadcast at 9 PM in the evening.
Views expressed are personal views of the author and not necessarily those of Notre Dame Law
School, the Center for Civil and Human Rights or Chicago Public Radio.