Much Much More Than A-"Mere Lawyer": YOO-"Set The Constitutional Violations In Motion"

The district court’s order should be affirmed. First, the court properly concluded that an American citizen seized from a civilian jail and subjected to years of military detention and torture has a remedy under Bivens. The habeas statute does not extinguish a damages remedy: while habeas can stop an unconstitutional detention from continuing, it cannot remedy an unlawful detention that has already occurred-and provides no relief to a torture victim. Bivens deters unconstitutional conduct, and the Supreme Court long ago affirmed that this deterrence is, if anything, more important when a defendant–even the Attorney General–invokes national security in an effort to preclude judicial review. The need to deter the military imprisonment and tortre of Americans in America strongly counsels providing Padila with a remedy for the serious, systematic and willful constitutional violations.

Second, the district court properly rejected Yoo’s claim to lack causal responsibility.. He set the constitutional violations in motion: as a member of the War Council, he formulated policies of extra-judicial detention and brutal interrogation visited upon Padilla; then, as a government attorney, he provided interrogators with the legal cover they demanded before implementing those policies.

Third, it has long been clearly established that military agents cannot seize a citizen from a civilian jail, transport him to a military prison, detain him there indefinitely and incommunicado without criminal charge or conviction, and subject him to a program of brutal interrogations, sensory deprivation, and inhuman conditions. Y 00 contends that all those rights became unclear when the Executive labeled Padila an “enemy combatant,” but no reasonable official could have believed that the Executive’s unilateral labeling of a citizen would allow it to transgress core freedoms long recognized by the Supreme Court.

If merely being a government lawyer insulates Y oo’s conduct from liability, then there is no limit to what government lawyers fired up with personal “zeal” can counsel: the construction of secret and lawless interrogation sites in American cities, dragnets based entirely on race or religion, the summary execution of American citizens on American streets.

Y00 does not cite any case holding that lawyers cannot be held liable for giving knowingly false advice. Instead, he protests that a case cited by Plaintiffs involved “claims against government lawyers for providing intentionally incorrect legal advice.” Br.32 (citing Donovan, 433 F.2d at 744-45). Padila alleges exactly that-that Y00 intentionally misrepresented the law to shield policies that he helped formulate and set in motion, providing legal cover for unconstitutional policies. Like Y00, the government lawyers in Donovan claimed that they had provided advice “in good faith” and that their opinion was based on a reasonable legal belief. But the defendants’ assertions of good faith were factual issues for the jury, not matters for the court even on summary judgment.