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Padilla v. Yoo
The man once accused of being a 'dirty bomber' is cleared to sue a key player in George W. Bush's 'war on terror.'

Saturday, June 20, 2009

JOHN YOO provided key -- and, we believe, wrong -- legal advice that gave the Bush administration cover for many of its dubious "war on terror" policies. But a judge's decision to allow accused "dirty-bomber" Jose Padilla to proceed with a lawsuit against Mr. Yoo is troubling.

Mr. Padilla, a U.S. citizen, was detained in 2002 after law-enforcement officials suspected him of plotting to detonate a radiological "dirty bomb" in the United States. Mr. Padilla was never tried for this alleged offense; he was instead labeled an enemy combatant and imprisoned in a South Carolina brig without access to counsel or any semblance of due process. Mr. Padilla alleges in his lawsuit that he was subjected to harsh treatment -- from extreme temperatures to sleep and sensory deprivation to solitary confinement -- that violated his constitutional rights and amounted to torture. Mr. Padilla claims that Mr. Yoo should be held personally liable because his legal work on terrorism issues set the foundation for such abuses. Mr. Padilla was ultimately charged and convicted in federal court on terrorism-related charges having nothing to do with the alleged dirty-bomb plot, but not before spending nearly five years in a legal netherworld. Mr. Padilla is seeking $1 in damages -- an amount that his lawyers say proves Mr. Padilla is not in this for the money.

Government officials are usually immune from lawsuits for acts they undertake in their official capacity. Yet Judge Jeffrey S. White of the U.S. District Court for the Northern District of California declined to dismiss the suit because he concluded that Mr. Padilla "has alleged sufficient facts to satisfy the requirement that [Mr.] Yoo set in motion a series of events that resulted in the deprivation of [Mr.] Padilla's constitutional rights."

We disagree profoundly with Mr. Yoo's expansive views of executive power, but a lawsuit of this type is not warranted. To strip a government official of immunity, a judge must determine "whether under clearly established law a reasonable official could have believed the conduct was lawful." Judges on various courts of appeals wrestled with Bush administration terrorism policies and came to different conclusions. The justices of the Supreme Court, likewise, have been closely divided on many of these matters. To now strip Mr. Yoo of qualified immunity would ignore the deep and sincere divisions among even neutral jurists.

Moreover, Mr. Yoo provided legal opinions on what he believed the law allowed the executive to do, but he did not make the final policy decisions. Allowing Mr. Padilla's case to proceed could have a chilling effect on the ability of government lawyers to give candid, good-faith advice for fear of being held personally liable. An investigation by Congress or an independent commission would better serve the purpose of understanding exactly what happened to Mr. Padilla and why, and to ensure that no U.S. citizen is ever treated this way again.

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