A convicted terrorist can sue a former Bush administration lawyer for drafting the legal theories that led to his alleged torture, ruled a federal judge who said he was trying to balance a clash between war and the defense of personal freedoms. The order by U.S. District Judge Jeffrey White of San Francisco is the first time a government lawyer has been held potentially liable for the abuse of detainees.
| A San Francisco federal judge -- how, um, novel. This will get slapped down by the Ninth Circuit. |
White refused to dismiss Jose Padilla's lawsuit against former senior Justice Department official John Yoo on Friday. Yoo wrote memos on interrogation, detention and presidential powers for the department's Office of Legal Counsel from 2001 to 2003.
Padilla, 38, is serving a 17-year sentence on terror charges. He claims he was tortured while being held nearly four years as a suspected terrorist.
| He has no proof, of course, since he has all his fingernails, no burn marks, etc. This is right out of the al-Qaeda playbook ... |
White ruled Padilla may be able to prove that Yoo's memos "set in motion a series of events that resulted in the deprivation of Padilla's constitutional rights."
"Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct," wrote White, a Bush appointee.
Yoo did not return telephone and e-mail messages Saturday.
White ruled that Yoo, now a University of California at Berkeley law professor, went beyond the normal role of an attorney when he helped write the Bush administration's detention and torture policies, then drafted legal opinions to justify those policies.
| No, Yoo did not. He did precisely what a lawyer is supposed to do: he wrote legal opinions to advise his client. |
Yoo's recently released 2001 memo advised that the military could use "any means necessary" to hold terror suspects. A 2002 memo to then-White House Counsel Alberto Gonzales advised that treatment of suspected terrorists was torture only if it caused pain levels equivalent to "organ failure, impairment of bodily function or even death." Yoo also advised that the president might have the constitutional power to allow torturing enemy combatants.
"The issues raised by this case embody that ... tension -- between the requirements of war and the defense of the very freedoms that war seeks to protect," White wrote in his 42-page decision. "This lawsuit poses the question addressed by our founding fathers about how to strike the proper balance of fighting a war against terror, at home and abroad, and fighting a war using tactics of terror."
The ruling rejected the government's arguments that the courts are barred from examining top-level administration decisions in wartime, or that airing "allegations of unconstitutional treatment of an American citizen on American soil" would damage national security or foreign relations.
| This opinion needs to be reversed on appeal or we'll have every district court judge in the country 'examining' the behavior of our troops around the world. |
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