Judge Weighs Dismissing Case Involving Torture Memorandums
John C. Yoo, flanked by David S. Addington and Chris Schroeder, testified before the House Judiciary Committee in June 2008.
SAN FRANCISCO -- Lawyers for the Obama administration struggled on Friday to persuade a federal judge here to throw out an unusual civil lawsuit against John C. Yoo, the former government lawyer whose memorandums on torture were used by the Bush administration to justify sweeping policies on detention and interrogation.
Despite their efforts, the judge did not seem inclined to dismiss the lawsuit, which was brought by Jose Padilla, an American citizen who spent more than three years in isolation in a military brig as an enemy combatant.
The judge, Jeffrey S. White of Federal District Court, explored the arguments of Mr. Padilla's lawyers thoroughly, but he appeared to be skeptical of elements of the government's argument.
In fact, Judge White, who was appointed by President George W. Bush, even told the government's lawyers that Mr. Yoo's 2001 memorandum stating that the constitutional protections against unreasonable searches and seizures can be overridden was "a pretty scary position."
The case, of course, could go in any direction, and predictions of judges' rulings are often proved wrong. Nonetheless, the lawyers for Mr. Padilla left the courtroom smiling.
"We were very encouraged by the court's questions," said Hope Metcalf, a lawyer with the Allard K. Lowenstein International Human Rights Clinic at Yale Law School.
Mr. Yoo, a visiting faculty member at Chapman University Law School in Orange, Calif., did not attend the hearing.
Mr. Padilla was convicted in 2007 on terrorism-related conspiracy charges. With his mother, he sued Mr. Yoo, claiming that the torture memorandums were directly responsible for his detention, interrogation and torture.
Mr. Padilla seeks monetary damages of just $1. His real goal, in this case and a number of others against other current and former United States officials, is a declaration from the government that his incarceration and harsh treatment were wrong.
"Plaintiffs seek to vindicate their constitutional rights," the complaint stated, "and ensure that neither Mr. Padilla nor any other person is treated this way in the future."
President Obama has shown little interest in prosecuting officials of the previous administration, and it is not clear whether there will be a government-sponsored investigation of Bush administration polices. But Mr. Padilla and his lawyers seem to be hoping that the civil courts may provide a kind of alternate truth commission, through the process of legal discovery. And the case has already borne fruit: the latest batch of Bush administration memorandums from the Office of Legal Counsel at the Justice Department, released Monday and showing that the administration believed it had vast domestic authority in combating terrorism, were a response to the Padilla v. Yoo lawsuit.
Mr. Padilla is not the only prisoner using the civil courts in this way. In another case, Mohamed v. Jeppesen Dataplan, current and former prisoners at Guantánamo Bay, Cuba, are suing a Boeing subsidiary that arranged the flights that took them to other nations, where they claim to have been tortured.
Mr. Padilla's lawyers are relying largely on a 1971 Supreme Court case, Bivens v. Six Unknown Named Agents, that allows some people whose rights have been violated by federal agents to sue the government. But the government lawyers said the theory of that case could not be appropriately applied to this one.
During the 90-minute hearing, Judge White asked whether the Obama administration had changed the legal position of the previous administration.
A lawyer for Mr. Yoo, Mary Hampton Mason, replied that all such cases were under review, and that the torture memorandums were largely discarded by the end of the Bush administration.
Ms. Mason and her colleague at the hearing, Glenn S. Greene, suggested that Mr. Padilla's lawyers were pursuing a case that was more about politics than law, and were trying to create a new legal theory to tie a lawyer to the results of his memorandums. "He had no supervisory role over Padilla or his detention," Ms. Mason said, referring to Mr. Yoo.
Ms. Metcalf argued on Mr. Padilla's behalf that the memorandums had had a direct effect on her client's case and treatment, and that Mr. Yoo had also served on the "war council" that set policies for the treatment of prisoners. She said his memorandums had tried to shield administration officials from blame or liability.
"Defendant Yoo," she said, "must not take refuge in the legal no man's land that he helped to create."
