The Volokh Conspiracy

In Mitchell v. Forsyth, 472 US 511 (1985), the Court rejected AG Mitchell's claim to absolute immunity for having auhtorized a warantless wiretap. In Burns v. Reed, 500 US 478 (1991), the Court held that a prosecutor's advice to police was entitled to qualified immunity only.

Have these kids or their "instructors" ever heard of proximate cause? This is an embarrassment.

Agreed that causation is an issue, tho where did that leave the lawyers who okayed the Nacht-und-Nebel decrees?

The focus on Yoo seems to me to make most sense as an effort to avoid being bounced out on a 12(b)(6) due to the very murkiness that Prof. Kerr identifies (see what happened to Valerie Plame's suit). If they can get to discovery, they may be able to get Yoo under oath as to whether he was, in so many words, directed to find a legal rationale for torture.

If OVP, say, directed him thus, then that might get a suit against Cheney or whoever past the 12(b)(6) mark -- assuming that even elected officials don't have absolute immunity for conspiracy to violate the laws of the United States.

If Padilla is only seeking nominal damages and a declaratory judgment that Yoo's advice was contrary to law when such a judgment will have no practical legal effect whatsoever, how can this lawsuit be anything other than a request for the district court to issue an advisory opinion? How then, does this case satisfy the Case or Controversy requirement of the Constitution?

Does Padilla have standing? I have not read the complaint but unless he claims he was actually tortured as a result of Yoo's memos, how was he personally harmed?

Of course, there also immunity and causation issues, but first things first.

The most interesting part of the comments at Opinio Juris:

[UPDATE: I'm informed by one of our regular readers of an additional possibility for the Padilla suit seeking only declaratory relief. Apparently, there's some Supreme Court precedent that requires a court to decide whether the Constitution was violated before deciding whether the defendant is entitled to immunity. Thus, if the constitutional principle being asserted by Padilla was not clearly established at the time Yoo acted, Yoo will ultimately be immune from damage relief. But before dismissing the complaint, the court is supposed to decide whether he violated the Constitution and thus, as a practical matter, there may be no immunity from declaratory relief. The issue, however, is a bit outside my expertise, so I'd be interested to know whether other readers agree?]

Maybe Yoo should then bring in Yale Law School to indemnify him. After all, they apparently failed to teach him the basics rudiments of law to prevent him from giving such bad legal advice.

I would be curious if anyone knows of a reported case where an attorney attempted to bring a claim or cross-claim against a school, professor, or treatise author on similar grounds.

You'd think the First Amdenment might be implicated to protect Yoo's legal opinion. At least I hope it would. Maybe Yoo should have written instead that Padilla had his first sexual experience with his co-plaintiff mother in an outhouse? Now that's something worth protecting!

What duty does a lawyer owe a non-client for negligence or malpractice? The only people with standing to sue Yoo on that score would be the public officials who perhaps relied on that opinion.

The legal system is getting goofier by the day.

Noo,

By your own argument, isn't there no "but for" causation?

. . . which supposedly led to a possible enemy of the US during wartime being "held in a 7 x 4 cell" and not given access to the full prison library?

Padilla alleges (perhaps untruthfully) that he was drugged and tortured. If true, that would imply a serious crime.

It's just a lawsuit. It will lose. Anyone can sue anyone for anything.

Is Yoo entitled to a defense by the Justice Department?

"Ah, Duncan Hollis thinks I have this 100% backward, and that it *is* all about Yoo. Disappointing if true."

You're so vain, you think this song is about Yoo.

Justin wins for the wittiest comment on the thread.

Padilla was questioned by the FBI in NY and then by the military in Charleston, and he made extensive un-Mirandized statements showing he committed Treason and was a spy. The constitution requires a confession to Treason be in open court, and a Court Martial on the same charges as ex parte Quirin would run into the same Fifth Amendment problems. However, if Padilla sues and claims he was not an enemy combatant and was abused during the period in which he was questioned, then he would have to take the stand as the only witness that supports these factual claims. He is then subject to a cross-examination, and his prior statements can be admitted for the purpose of impeaching his testimony. Although his original statements may be inadmissible, anything he says on the stand during cross could be used against him and, as statements in open court, could satisfy the constitutional requirement for a Treason conviction. If there is one thing clear in this case it is that Padilla is not very smart and does not know when to keep his mouth shut. No competent lawyer will expose him to such a cross-examination.

Padilla has been the subject of continuous litigation, but up to this point his lawyers have attempted to use forms (summary judgement, an affidavit) that prevent his testimony. It is not clear that even the trick of asking for only nominal damages is enough to keep him off the stand in this case. Winning a dollar in compensation is not worth taking a chance on providing the evidence that will get your client hung.

It occurs to me that Padilla might want his case to be heard in the International Court of Justice. Although a US citizen, the Bush administration declared him to be an "illegal enemy combatant." The Bush administration cannot have their cake and eat it, too. But before a case can be brought in the ICJ, the plaintiff has an obligation to exhaust local remedies. So these two lawsuits might have been brought pro forma, to start the exhaustion process and get to the ICJ all the quicker.

Roy,

This is political. The necessities of defensive practice of law in civil tort actions lead to private practitioners suing everyone in sight, particularly in medical malpractice and construction defect cases.

I admit I was not clear. Padilla's statements would not be admissible in a criminal case against him, but are admissible in this civil case. However, if they were used during cross to elicit additional statements, then those additional statements could be used in a subsequent criminal charge of Treason. Given Padilla's previous willingness to talk to everyone and tell everything, it seems likely that any competent lawyer should be able to elicit enough testimony to make the case.

Mr Hayden does add an important point I missed. Padilla has thousands of hours of recorded video of statements made during interrogation where he outlined his participation in a plan to kill thousands of Americans. He was, by his own admission, the key player in the next attack (the "apartments operation") on the US by the group that carried out the 9/11 attack (the "planes operation"), and his arrest stopped the follow-on attack. The government never had an opportunity to introduce his tapes, because they were never relevant to any litigation. This case could open the door, and Yoo could subpoena the tapes and introduce them. Those tapes would dominate the news, while Padilla's allegations would remain unsubstantiated.

Normally a lawyer has to do everything in the best interest of his client in the present case, but here there is very little downside for Yoo, especially if the government is picking up the tab. There is an enormous downside for Padilla. So if I were a government lawyer assigned to this case I might (with the permission of Yoo) bypass a few of the preliminary motions that would get the case thrown out immediately and move as quickly as possible to any type of hearing where Padilla has to take the stand.

The two cases (this civil case and Padilla's subsequent Treason trial) address different questions. It is certainly possible that Padilla was a traitor but that there was some consititutional defect in his subsequent treatment. So he could win his dollar from Yoo, and legal fees from the government, and then get convicted of Treason and sentenced to die. I am willing to take up a collection to pay the buck.

Yes, we should certainly imprison or kill anyone who questions our government, just as the founders intended. /sarcasm

Please show me where "the founders intended" for an international court to sit in judgment of an American government official because a convicted terrorist disagrees with that official's legal opinion.

Please show me where "the founders intended" for an international court to sit in judgment of an American government official because a convicted terrorist disagrees with that official's legal opinion.

I think the majority of people here would be quite happy to have an Art III court sit in judgment of the American gov't official. At least I would.

I don't care about international courts and I can't possibly imagine why would you mention them in this context except as a red herring. The matter under discussion is Padilla v. Yoo and I'm not going to be baited into discussing anything else.

Theorizing that the current case is pro forma to exhaust local remedies is relevant to the case. Spewing about treason is not.

No, "Oren," if "the current case is pro forma to exhaust local remedies" so that Padilla can bring an action in an international court, my response is relevant. It is clear from your first comment that you just didn't bother to read the entire string before you posted. Backtrack all you want, but I didn't bring up international courts and if they are a red herring, they are Tony Tutins' red herring, not mine.

It brings to mind a quote from Breaker Morant:

Harry Morant: "There is an epitaph I'd like: Matthew 10:36,... And a man's foes shall be they of his own household." You have to enjoy the irony. Nothing like our "elite" tearing at one another. Next time, John Yoo will remember to drink the Yale Koo-aid.