Can a DOJ lawyer be held accountable for advocating the inhumane?
By Doug Cassel
When on Jan. 22 a federal court judge sentenced Jose Padilla to 17 years in prison for conspiracy to commit terrorism, it was a one-day story. But, in fact, the Padilla case goes on.
Padilla, a U.S. citizen and former Chicago gang member, alleges that he was tortured during the more than three and a half years he spent behind bars at a Navy brig in South Carolina. He is now suing John Yoo, the former Justice Department lawyer who reportedly devised the legal theories to justify the interrogation techniques used against him.
While Padilla’s suit raises a number of constitutional claims–including that the military violated his rights to counsel and to exercise his Muslim religion–the heart of his argument is that Yoo gave legal advice to justify his torture, in violation of due process of law as guaranteed by the Fifth Amendment to the Constitution.
Padilla, who is separately appealing his recent conviction, asks the court to rule that his treatment violated the Constitution, and to order Yoo, now a law professor at the University of California at Berkeley, to pay him $1 in damages.
The suit raises important questions of law and fact. Are lawyers liable for giving bad legal advice to federal officials?
In August 2002, Yoo, then an attorney in the Justice Department’s Office of Legal Counsel, wrote a formal opinion letter advising that interrogation techniques are not torture unless they inflict pain equivalent to “organ failure, impairment of bodily function or even death.” The new head of the Office of Legal Counsel, Jack Goldsmith, later withdrew Yoo’s opinion.
Goldsmith, now a Harvard law professor, explains in his book, The Terror Presidency, that Yoo’s reasoning was “legally flawed” and “tendentious.” It seemed “more an exercise of sheer power than reasoned analysis.” Even so, was it the proximate cause of any mistreatment of Padilla?
However such questions are resolved, Padilla’s allegations of his treatment, if true, ought to shame a civilized society.
Padilla charges he was imprisoned in a seven-foot by nine-foot cell in the Navy brig in Charleston, S.C., for nearly four years. For the first 21 months, he says he was denied all contact with anyone outside the brig, including family and lawyers, leaving him with interrogators and guards as his only human contact.
He alleges he was allowed no watch or clock, nor any news about the outside world. The only window in his cell was blacked out. When he was allowed out of his cell, his eyes and ears were covered.
Periodically, he says, he was subjected to absolute light or darkness for periods in excess of 24 hours. He was subjected to extreme temperature variations in his cell, where his bed consisted of a cold steel slab with no mattress, pillow or blanket. He says brig guards and others deliberately banged on his walls and bars at all hours of the night. For hours at a time, he says guards kept him shackled and manacled, or forced him to sit or stand in uncomfortable and painful positions.
Worse, his interrogators allegedly threatened to cut him with a knife and pour alcohol in the wounds. He says they also threatened to kill him, or send him to a country where they said he would receive far worse treatment. Against his will, they allegedly administered chemicals, which Padilla believes were psychotropic drugs.
When his lawyers were finally allowed access to him, he was not permitted to tell them about prison conditions.
If Padilla’s allegations are true, they qualify as torture under international law: the intentional infliction of severe physical or mental pain for purposes such as interrogation. The U.N. Committee on Torture and the Inter-American Court of Human Rights have held that incommunicado detention–even for periods far shorter than Padilla endured–is torture. They have also ruled that combinations of sensory deprivation techniques amount to torture, as well.
According to Padilla’s complaint, a “substantial body of clinical literature and expert opinion … holds that restriction of environmental and social stimulation has a profoundly deleterious effect on mental functioning, and that even a few days of solitary confinement predictably causes brain patterns to become measurably abnormal.”
It would drive anyone mad.
Yoo has castigated Padilla and his lawyers at the Yale Law School clinic for waging “lawfare,” which Yoo calls “another dimension” of the terrorist war against the United States.
In a Jan. 16 op-ed in the Philadelphia Inquirer, Yoo complained that terrorists use cases like Padilla’s to press “novel theories that have failed at the ballot box.”
If their legal theories are novel, Yoo can thank himself: Never before has the Justice Department sanctioned prolonged, mind-altering brutality on a U.S. citizen.
Still, suing a government lawyer for rendering legal advice, no matter how injudicious, ought to give pause. Such lawsuits could deter creative thinking by attorneys trying to protect the public. If allowed at all, they should be confined to rare and extreme cases, such as Yoo’s torture memo.
There are limits on what advice lawyers may give. After World War II, German government lawyers who wrote memos and orders depriving Russian prisoners of war of their Geneva Conventions protections, and authorizing the forced disappearances of political prisoners, were convicted at Nuremberg. Would authorizing torture of prisoners have made them any less guilty?
Although the suit against Yoo does not seek to convict him of a crime, it does aim to hold him civilly liable–for a symbolic $1 in damages–not only for the torture, but also for his legal advice that allegedly led to violations of Padilla’s constitutional rights. Those include the rights to counsel, access to court, due process of law, freedom of religion, rights to information and association, and his rights to be free from inhumane conditions of confinement, cruel and unusual punishment, coercive interrogations and improper military detention.
In pressing these wide-ranging claims, Padilla’s lawyers face daunting legal obstacles. Unlike most damages suits for violations of basic rights, civil rights law does not authorize their lawsuit. By necessity, Padilla’s suit rests directly on the Constitution. While the Supreme Court has authorized suits for damages based solely on violations of the Constitution, it does so sparingly–when the violations would not otherwise be subject to judicial or effective oversight and, even then, only if no special factors weigh against the wisdom of creating a new cause of action.
Only one of Padilla’s claims–under the Eighth Amendment–has arguable Supreme Court precedent. Some claims may fail on the ground that they are subject to judicial oversight in the criminal proceedings against him. Others may be rejected because they deal with gray areas of national security law, where legal mistakes should not result in damages suits.
But Padilla should probably be allowed to try at least his core claims–that the torturous confinement and interrogation techniques violated his Fifth Amendment right to due process, and possibly his Eighth Amendment right not to be subjected to cruel and unusual punishment. To the extent the prosecution in his criminal trial did not rely on any coerced confession by Padilla, these alleged violations have not been subject to judicial oversight.
Curbing an imperial presidency
If Padilla overcomes this hurdle, others remain. Yoo may contend that he is entitled to absolute immunity, as are prosecutors when presenting their cases to a court. But Yoo more likely will be granted only the “qualified immunity” afforded to prosecutors when they advise police on interrogation techniques, or to the attorney general when he authorizes national security wiretaps without a judicial warrant.
If Yoo is granted qualified immunity, he can be held liable for his erroneous legal advice only if it violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” In this case, his legal advice plainly did: Yoo’s memo legally authorized torture.
But the issue is not so simple.
Yoo’s overriding legal rationale is that the president’s powers give him constitutional license to override any law–including laws against torture–if he deems it necessary to wage a war. The courts may thus need to consider whether any reasonable lawyer could advise that the Constitution allows the president to disregard all law during wartime.
Finally, the government might decide to assert the “state secrets” privilege to quash Padilla’s claims, on the ground that the claims cannot fairly be adjudicated without probing secret intelligence methods and communications.
Unless barred by the state secrets privilege, Padilla’s suit will likely break new ground. Far from a case of “lawfare,” it promises to strengthen the rule of law by clarifying whether and when government lawyers can be held accountable for ill-considered legal advice.