If the Yoo Fits ...
Why shouldn't Jose Padilla sue 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."
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at email@example.com or on Facebook or Twitter.
Photograph of John Yoo by Mandel Ngan/AFP/Getty Images.