Wednesday, June 17, 2009
Brian Tamanaha
Judge Jeffrey White's recent decision (available
here) allowing Jose Padilla's lawsuit against John Yoo to continue has several remarkable findings. White was appointed by President George W. Bush, so it's safe to assume that he is not a flaming liberal.
Padilla is bringing a
Bivens suit against Yoo for authorizing extremely harsh treatment of Padilla in violation of his constitutional rights. (Padilla is seeking a declaration that his rights were violated, and he requests damages in the amount of 1 dollar.)
Bivens suits are quite difficult for plaintiffs, with a number of presumptions operating against them.
Judge White found that it appears unlikely that Yoo will be held accountable in any other forum (noting that criminal charges are unlikely). Accordingly, in the absence of any other sanction, "litigation may be necessary to ensure that officials comply with the law." Here is Judge White's tart dismissal of Yoo's attempt to create a legal shield for others and for himself:
Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla’s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power.
Judge White then proceeds to knock down every argument Yoo raises in support of dismissing the suit, from deference to the executive to the protection of state secrets.
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