I [now have read] the complaint, [and the blogosphere has been] hopping on news that Jose Padilla and his mother have sued John Yoo ( Orin Kerr and many others at Volokh and Duncan Hollis at Opinio Juris). The graveman is deprivation of constitutional rights [acting under color of law as a federal officer. The complaint touches very lightly on the precise legal theory. A commentor (wfjag) at Volokh suggests that the complaint may be an attempt to sidestep the difficulties of proceeding under the Federal Tort Claims Act and instead proceeds under a Bivens-type theory.]
Before getting to the merits, I wonder about who pays for Yoo's defense. The allegedly wrongful conduct was undertaken as an OLC employee, so I imagine Yoo's legal fees will be indemnified or perhaps the government will undertake his direct representation.
[An article in the Daily Journal, by Craig Anderson (no free link), says that a similar suit in South Carolina against several public officer defendnats is being defended by the DOJ and that the defendants have argued a lack of jurisdiction over the defendants. Hence the new filing was done in the district of Yoo's residence. I'm not certain about the specifics of the suit in South Carolina but will update when I get a chance.]
The complaint claims that plaintiffs had the option of filing in San Francisco or Oakland -- and they obviously preferred SF. [The plaintiffs drew Magistrate Judge Maria-Elena James. We'll have to wait to learn if either side will assert its rights to have an Article III judge handle the substantive issues.]
[The plaintiffs' lawyers are Jonathan Freiman and Hope Metcalf of Yale Law School and Natalie Bridgeman, an independent consulting attorney who practices in San Francisco under the trade name, International Human Rights Counsel. Their complaint is well written and constructed and for the most part lets the facts speak eloquently for themselves. (Of course, allegations are just allegations.) Near the end, there is a personal dig at Yoo that slightly undermines that tone.]
[A newspaper article stated that Yoo is represented by an Eric M. George. He's quoted in Adam Liptak's NYT article as saying that the suit is a "political diatribe" that "belongs, at best, in a journal, not before a federal court." I think I've found George's website, but because I'm not certain and there could be more than one Eric George out there, I won't link yet.]
UPDATE: The two threads at Volokh provide insights about the suit. Immunity for government employees will be a key issue. More broadly, when should lawyers be legally responsible for client action following legal advice? It's a difficult issue where two opposing intuitions clash. On the one hand, if a lawyer says to the client "you can do X," and X is a bad thing [that hurts people], we want the non-client victims to have recompense. On the other hand, when we entertain arguments that lawyering is itself a crime or tort, the legal system simply turns on itself [and the lawyers have an incentive to protect themselves rather than to serve the client].
In addition to the privilege/immunity issue, these cases raise subtle causation issues. Take, for instance, the issue of whether the Geneva Convention applied to the Taliban and al Queda personnel seized in Afghanistan. The Delahunty-Yoo memo concluded that the Convention didn't apply to either group -- but noted that as a matter of policy the president could decide to live up to the Convention anyway and that as an historical matter the US had always done so. In what sense did the memo "cause" what conduct?
There is also some [interesting speculation] by a Howard Gilbert about Padilla himself. (Gilbert's comments are in the Volokh threads linked above and here at Opinio Juris.) The gist of Gilbert's insight is that Padilla has admitted to the facts constituting treason [and other crimes] but that his statements were inadmissible at the criminal trial where Padilla was convicted. In his own civil case, however, if Padilla refuses to talk the normal result is that his claims Will be dismissed. On the other hand, if Padilla does talk (in deposition, for example) he would provide airtight evidence against himself on additional charges. [Gilbert's suggestion, which seems plausible, is that this lawsuit raises some risk to Padilla. On the other hand, given that Padilla is presumably locked away for life in a supermax, what's the downside? [Bart comments below that the downside is the death penalty.]] Can anyone else comment on Gilbert's insight? Perhaps this is [one reason] why Padilla's mother was added as a party.
UPDATE 2: Another interesting angle is confidentiality. In [fraud, conspiracy, and] aiding & abetting cases brought by non-prosecutorial third parties, lawyers sometimes argue that the case should be dismissed because the lawyers can't defend themselves without breaching client confidences. What will be the Executive Branch's position be in this case? That Yoo shouldn't reveal confidences? The issue gets muddled here because both Yoo and Jack Goldsmith wrote books that revealed some aspects of the OLC lawyering process. IIRC, both of them offered explanations as to why they were permitted to do so, and to some degree both used the "already in the public record" explanation. [Here's a good post on this issue from Michael Stokes Paulsen at Balkinization.] The standard analysis in private practice is that "it's already a publicly known fact" doesn't necessarily suffice to unseal the lawyer's lips. MR 1.6 is broader than that and covers all information relating to the representation. Lawyers sometimes think of client confidences as trade secrets (i.e., it has to be the client's proprietary information and it has to be non-public information). That's not really how it works. Perhaps the rule is different for government lawyering.
[Related to the confidentiality issue is the issue of state secrets. The federal government will not want Jose Padilla to take discovery about the inner workings of the Executive Branch and may move to dismiss on that grounds. Comments to the Volokh posts have raised this issue.]
There was another interesting comment at Volokh suggesting that this lawsuit has been brought as the first phase of a legal strategy that will end up in [an international court].
UPDATE 3: Paragraph 20 of the complaint says that Yoo is responsible for memos he did not sign, but which he principally drafted. There's an interesting issue there: to what extent is Yoo legally responsible for the memo if under the organizational structure of the OLC the memo wasn't formally issued by Yoo? To make a loose analogy, under FRCP 11 the signer of the document bears responsibility for the content. Similarly, but by way of another loose analogy, lawyers sometimes draft the offering memoranda for corporate clients but the clients issue the memos. So suppose that Yoo was the principal draftsman on the memos but they weren't finalized and issued until Bybee was satisfied that the memo was appropriate and therefore signed it. Is Yoo responsible for the memo? (I don't see that MR 5.2 is applicable here, since that deals with a subordinate lawyer's responsibility under discipline rules.)
I may be mistaken, but the only memo Yoo allegedly signed was the January 9, 2002 memo on the applicability of the Geneva Convention to Taliban and al Qaeda personnel seized in Afghanistan. That memo does not define torture.
The plaintiffs allege in paragraph 95 that Yoo's participation in the writing of the Torture Memos "provided essential legal approval [for the bad acts]" Again, would it matter if [as a matter of law and OLC practice] Yoo himself could not legally provide that approval? That is, when Yoo doesn't sign the memo or formally issue it, does Yoo provide "legal approval"?
Paragraph 17 says that President Bush declared Padilla to be an enemy combatant "based upon Defendant Yoo's legal opinion and Ashcroft's recommendation." I may be wrong, but as I understand it, the OLC can bind everyone in the Executive Branch except the president. If so, then does sole responsibility for the declaration lie with the president?
Paragraph 5 alleges facts giving standing to Padilla's mother: she was denied her constitutional rights to familial association and communication. This complaint was so carefully constructed that I'd love to know the exact reasons she was added as a plaintiff. Howard Gilbert provided one possible explanation, discussed above: Padilla himself cannot afford to give testimony in this civil case and his mother is like a "second arrow in the quiver." [Moreover, as a practical matter it may be difficult to get testimony from Padilla to support his claim, given his incarceration and his mental health.]
Paragraph 63 seems designed to bear a lot of weight on the causation issue. It pleads alternate theories, pleads upon information and belief, and cites "a deliberate unwritten understanding fostered by the promulgation of memoranda including those authored by Defendant Yoo . . . ." It seems that the plaintiffs expect a stiff challenge at the pleading stage on this issue and want to allege a wide variety of ways that Yoo's memos caused unlawful interrogation techniques. Later, in paragraph 104, plaintiffs allege in the alternative that Yoo helped "create[] a climate." These allegations about unwritten "understandings" and "climates" seem designed to make Yoo responsible for a very broad range of conduct that plaintiffs fear cannot be directly traced to Yoo.
[Overnight it occurred to me what was missing from this complaint that I'd expect to see in a similar suit arising from private practice: "conspiracy" and "aiding and abetting" language. I lack expertise in claims for deprivation of constitutional rights by government officials, and so I'm wondering if readers can suggest why the complaint so carefully avoids mentioning theories of secondary liability. The complaint is full of phrases that cry out for a reference to conspiracy -- phrases like "systematic programs," "understandings" and "climates." In general, it's hard to successfully prosecute a claim for a conspiracy between a lawyer and a client. Indeed, much of lawyering looks like a conspiracy: lawyer and client meet in secret and plot about how to make life better for the client and worse for other people. Courts often rule that lawyers are incapable of conspiring with clients, absent special conditions. A conspiracy claim between OLC and the Executive Branch would seem to raise similar problems. I'm speculating here, but are the plaintiffs carefully pleading around a defect? Reader comments are welcome.]
Paragraphs 66-76 allege the ways that the confinement interfered with the attorney client relationship between Padilla and his lawyers. [It's the kind of treatment you'd expect in a "post-Lynne-Stewart" environment. As I've argued before, her behavior really hurt criminal defense counsel in these cases. I admire the lawyers who continue to fight for their clients in that environment.]
The Prayer has been discussed at Volokh. It seeks a declaration and nominal damages.
