Reasserting its defenses of former Justice Department lawyer John Yoo for his authorship of various war-on-terror memos, the Obama administration sent its lawyers to San Francisco on Friday to thread the following needle: Torture -- illegal. Extended military detention -- under review.
Lawsuit against an ideologically hostile former government attorney -- bad, very bad.
DOJ senior trial counsel Mary Mason asked Northern District of California Judge Jeffrey White to dismiss a complaint against Yoo, saying civil litigation is not an appropriate forum to address core national security issues. Mason raised the specter of what could happen when the fear of litigation is on the minds of decision makers in such dangerous times.
"I'm not designating you an enemy combatant, and I'm not going to interrogate you, because I might get sued," she said.
But White said the idea that constitutional protections wouldn't apply in those situations is "astounding."
"If that's your position, that's a pretty scary position," he said.
Mason said her position was only that Congress hadn't created a civil remedy for this situation.
Yoo, now a professor at the University of California, Berkeley School of Law, faces a complaint brought by Jose Padilla, a U.S. citizen held incommunicado for more than three years at a South Carolina military brig because of his suspected ties to al-Qaida. According to Padilla's complaint, Yoo's legal memos directly led to the torturous treatment meted out to the plaintiff.
Authorities released Padilla back to the criminal justice system shortly before the Supreme Court could review his separate habeas corpus petition, which led to a conviction and lengthy prison term.
Padilla did not sufficiently allege that Yoo's memos caused his suffering, Mason argued. But White appeared skeptical, saying the complaint states that Yoo intentionally misstated the law in order to give cover to illegal acts.
"That's about as specific as you can be in this context," White said.
The judge later asked plaintiffs lawyers from Yale's international human rights clinic whether the law was clearly established at the time Yoo drafted his memos. DOJ trial attorney Glenn Greene jumped on that theme, saying the Supreme Court's Hamdi decision -- which tackled due process rights of enemy combatants -- didn't come down until a year after Yoo left the department.
Thus, in the military context, the law had not been clearly established, Greene said. But Padilla lawyer Tahlia Townsend countered that 9th Circuit case law doesn't say "every dog is entitled to at least one bite," and that well-established rules on torture should have counseled against the legal analyses Yoo undertook.
Even though there has never been an instance where a welfare official sold children into slavery, should such a hypothetical case ever arise, Townsend said a lawsuit would clearly be appropriate.
Earlier last week, the Obama administration released nine "war on terror" memos -- some written by Yoo, others by 9th U.S. Circuit Court of Appeals Judge Jay Bybee -- shortly after White ordered the DOJ to clarify whether it wanted to submit them under seal in the Padilla case. However, the administration didn't release all of the memos referenced in Padilla's complaint, and White asked whether that meant he had to take Padilla's descriptions of those documents as true, for purposes of a motion to dismiss.
White characterized his inquiry on this subject as "50 percent curiosity, and 50 percent legal significance." The government once again revealed its awkward position in the litigation, since technically Yoo is being sued in his individual capacity. Thus the government is not a party, and has no discovery obligations.
"What's the harm in putting all of the memos on the Web site?" White asked.
"I have no idea what the harm would be," Mason said, adding that it is a policy decision made by officials in Yoo's former office.