Civil Suit Against John Woo By Padilla Advances

A federal judge in California held that a civil lawsuit for damages (called a "Bivens suit") against John Woo, the Bush administration attorney whose legal opinions formed the basis for most of the decisions provided legal cover for much of the torture and denial of access to the courts to "enemy combatants," states a legally valid claim.

The core of the case comes down to the different levels of immunity that government lawyers have in different situations. Discretionary prosecutorial decision making and discretionary judicial decision making have absolute immunity. But, this decision, relying upon some already established precedents, set a different constitutional threshold for liability when a government attorney writes an opinion letter or memorandum that foreseeably denies someone their constitutional rights. In those cases, government employees are entitled to mere qualified immunity, the same level of protection that applies, for example, to law enforcement officers carrying out their duties.

The distinction is similar to the distinction between the liability of attorneys to adverse parties for confidential advice given by attorneys to their clients, for example, in litigation, which does not generally create personal liability for the lawyer (although there is a "crime-fraud" exception), and the liability of attorneys for their opinion letters on the validity of a transaction (e.g. the validity of a bond issue or a tax shelter), which is similar to (although not precisely the same as) a warranty.

Qualified immunity imposes liability when a clearly established constitutional right is violated, but protects the person claiming the immunity when the right protected violated a constitutional right which was not clearly established at the time.

The trial judge has held in Jose Padilla's case (a man declared an enemy combatant by the President and then detained without trial until the U.S. Supreme Court was about to decide his case when he was tried in a federal criminal court on criminal charges separate from those forming the basis for his detention), that John Yoo's actions (mostly a matter of public record and hence not subject to the state secrets doctrine) violated clearly established constitutional rights of Jose Padilla and that Padilla has stated a claim that the harm flowing from Yoo's rulings foreseeably harmed Padilla if the allegations of his lawsuit are true.

The trial judge's ruling gives special emphasis to the facts that Padilla's case involved an American citizen, that the acts in question took place on American soil, without specific Congressional authorization, as a result of the acts of a civilian, rather than a soldier, in a situation where there is no other remedy for the violations of his constitutional rights that Jose Padilla suffered.

Decisions to deny a government employee qualified immunity can be appealed immediately. Since the case is in the 9th Circuit Court of Appeals, and raises substantive issues different from those raised in prior habeas corpus litigation by Padilla, the 4th Circuit's pro-government enemy combatant precedents are not binding in this case.

Yoo is one of the most notorious of America's Bush Administration war criminals, and this suit opens the possibility that Yoo may be held responsible for the heinous harm he has done to the American constitution. He may also face disbarment for his acts, although it appears unlikely that criminal charges will be filed against him. Padilla's case is hardly a sure bet. But, few people deserve legal sanctions for his actions with in government service more than John Yoo. His acts for conscious and calculating efforts to undermine the law in a way that can be claimed for few others in the enemy combatant and torture saga. He was the legal architect of one of the gravest injustices of American history.

After it was declared that he was no longer an "enemy combatant," and being tried on criminal charges in Florida instead, Jose Padilla was convicted of charges that amount to a conviction for joining a terrorist group in August of 2007. Padilla was sentenced to 17 years, 4 months in prison on the criminal charges of conviction by the U.S. District Court on January 22, 2008. He is currently incarcerated in a maximum security prison in Colorado, while his case is on direct appeal to the conservative United States Court of Appeals for the 11th Circuit (the government has filed a cross-appeal as well).