Judge Allows Dirty Bomber's Lawsuit Against Torture Memo Author to Continue

By Kevin Fayle on June 15, 2009 | Last updated on March 21, 2019

When President Obama released the so-called torture memos from the Bush administration, there was an immediate call to indict the lawyers responsible for the memos.  It doesn't look like that will happen, but the authors of the memos might end up in court anyway as defendants in civil lawsuits rather than criminal trials.

District Court Judge Jeffrey White of the Northern District of California allowed most of Jose Padilla's suit against John Yoo, one of the authors of the memos, to go forward on Friday, despite Yoo's motion to dismiss the case.  Padilla, who is serving a 17 year sentence for a dirty bomb plot, alleges that Yoo, by drafting memos meant to act as a legal shield for constitutional violations, became personally responsible for those violations.

Judge White's decision represents the first judicial opinion holding that goverment lawyers are potentially responsible for detainee abuse.
Padilla claims that military officials and personnel subjected him to years of physical and psychological mistreatment that violated numerous constitutional rights. 

Yoo moved to dismiss the case on the grounds that the court should not recognize Padilla's claim and that Yoo was entitled to qualified immunity.  Judge White rejected Yoo's arguments, finding that Yoo's drafting of the memos arguably "set in motion a series of events that resulted in the deprivation of Padilla's constitutional rights."

The decision has already sparked controversy, with some wondering how the issuance of a legal opinion as part of policy development could render the authoring attorney liable for constitutional abuses that result from the resulting policies.

Judge White stated that Yoo went beyond the role of an attorney by crafting legal opinions designed to facilitate the plans for harsh interrogations that the Bush administration had already decided upon.

See Also:
Judge White's Opinion (Padilla v. Yoo)
Judge Allows Civil Lawsuit Over Claims of Torture (NYTimes)
Judge OKs suit against Yoo (Politico)
Jose Padilla, Meet John Yoo: Judge Clears Path for Lawsuit (WSJ Law Blog)
Padilla v. Yoo - Judge denies motion to dismiss "torture memos" case  (Constitutional Law Prof Blog)
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