Judging John YooThe ruling that could actually lead to accountability for torture.

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First, it can accept the decision rather than appeal. This would allow Padilla's attorneys to proceed with the evidence-gathering of discovery: reviewing Yoo's classified memos, reading his e-mails, and even questioning him under oath. Although the government could try to keep what Padilla gleans from this confidential, Padilla's lawyers will correctly argue that the public has a strong interest in seeing the material: The American people deserve to know which officials set our interrogation and detention policies. Scores of detainees would then use the evidence from Padilla's discovery to establish their own plausible legal claims. The administration isn't likely to go for any of this.

A second alternative is for DoJ to assert the state secrets privilege to argue that no more evidence about Padilla's treatment may be revealed. The privilege has long been used to prevent the release of top-secret information during litigation. The Bush administration dramatically expanded it in order to get entire lawsuits dismissed, including a suit from German citizen Khaled el-Masri, who had been tortured by the CIA at its Afghan black sites because the agency thought he was somebody else.

Will the administration assert the privilege to protect Yoo and other former officials? As a candidate, Obama opposed the Bush administration's abuse of the privilege; as president, he has said that it should be reformed and has appointed some of its harshest opponents to the DoJ's Office of Legal Counsel (where Yoo used to work). But, to widespread anger, his DoJ has repeatedly embraced Bush's maximalist vision.

Asserting the state secrets privilege in Padilla v. Yoo would draw international condemnation and would surely give momentum to the Senate's current effort to roll back the privilege by statute. The 9^th Circuit court of appeals, where Padilla v. Yoo is being heard, recently rejected the administration's expansive view of the privilege. It's not clear whether Attorney General Eric Holder is willing to further damage his reputation in order to save his predecessors'.

That leaves the administration with a simpler—but equally fraught—next step: appeal Judge White's ruling on the grounds that Yoo has immunity from the suit and that he didn't actually cause the constitutional violations. That appeal would buy Yoo and the government time by delaying discovery. But it could also yield more rulings the government won't like, since the 9^th Circuit has become increasingly skeptical of the DoJ's arguments. And then Padilla v. Yoo could be left in the hands of the Supreme Court.

No matter how the Obama administration chooses to proceed, the decision is a major blow to its pursuit of closure on torture. No judge likes to be first; now White has taken that step. If other courts follow the lead of Judge White and the 9^th Circuit, new evidence will surely emerge, further bolstering other detainees' claims.

And that's why Padilla v. Yoo could become a landmark. The continued pressure emanating from the federal courts could push Congress to establish a truth commission or even Attorney General Holder to appoint a special prosecutor. Accountability for torture has slipped out of the news lately. But it will come back.

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