John Yoo, author of some of the Bush administration's war-on-terror memos, has hired Washington, D.C., lawyer Miguel Estrada to appeal a ruling that allowed an allegedly mistreated detainee's suit against Yoo.
In a court filing last week (.pdf) notifying Northern District of California Judge Jeffrey White of the appeal, Justice Department lawyers who have represented Yoo thus far announced they were stepping aside, and that Yoo would hire private counsel.
Estrada, a Gibson, Dunn & Crutcher partner and former Bush nominee for the U.S. Court of Appeals for the D.C. Circuit, confirmed by e-mail on Thursday that he will be representing Yoo for the appeal.
The Justice Department said it will still pay for Yoo's defense, "as is normal practice when the potential exists for disagreement between the government and the defendant over complex legal questions." In an e-mail, spokeswoman Tracy Schmaler did not describe what that disagreement might be.
"The department so far has been able to provide direct representation in this case by arguing that the lawsuit should be dismissed for qualified immunity reasons, and that remains the department's position," Schmaler wrote. "But as this case moves forward, the defendant deserves the opportunity to retain defense counsel that can make any and all arguments available on his behalf."
Yoo was sued in 2008 by alleged al-Qaida associate Jose Padilla and Padilla's mother. Padilla, a United States citizen, was designated an enemy combatant in 2002 and held incommunicado in a South Carolina navy brig for almost two years.
Yoo served as a deputy assistant attorney general in the Justice Department's Office of Legal Counsel between 2001 and 2003. There, with lawyers including now-9th Circuit Judge JayBybee, he authored legal opinions that served as guidelines for the Bush administration's "war on terror" policy.
According to Padilla's complaint, Yoo's memos and the policies they green-lighted led directly to Padilla's treatment, which included stress positions and death threats.
Yoo argued that he was entitled to qualified immunity for his work at the OLC, but in June, Judge White denied Yoo's motion to dismiss Padilla's suit.
Estrada has already been representing Yoo in an investigation by the Justice Department's Office of Professional Responsibility into the legal work behind the memos. That investigation is ongoing, though the results could be released at any time, and a draft finding reportedly would have referred Bybee and Yoo to State Bar authorities for possible discipline.
Estrada, who was traveling for other business on Thursday, declined to respond to the Justice Department's statement or elaborate on why he will be taking over Yoo's representation in the civil suit. Yoo, now a professor at UC-Berkeley School of Law, did not return a call and e-mail seeking comment.
New York University School of Law professor Stephen Gillers, who has written about the investigation into the memos, said that the Justice Department should not have been Yoo's sole representation in the first place, because conflicts of interest between Yoo and his former employer were too likely to occur.
Yoo may have wanted to make arguments that the Justice Department couldn't pursue, such as implicating other DOJ officials, Gillers said. He speculated that Yoo may have wanted to investigate former Vice President Dick Cheney, former Attorney General Alberto Gonzales, or Cheney's former legal counsel, David Addington.
"Just hypothetically, he might say, 'I was ordered to do this by David Addington, so he should be in this [case] also,'" Gillers said. "DOJ's not going to sue David Addington on behalf of Yoo."
Georgetown University Law Center professor David Luban, an ethics expert who has also written about the torture controversy, said in an e-mail that he hadn't been tracking the case closely, but that the Justice Department's decision could indicate the government was litigating the Bush administration's position at the district court level, but is now rethinking whether to continue to maintain it. Or, he speculated, it might be that the OPR report will be issued soon and will recommend discipline.
"That by itself would create a conflict of interest in DOJ defending his position in a closely related civil case," he wrote. "Even though OPR is a different subunit of DOJ, it's not a separate law firm."