Posted by MataHarley on 13 June, 2009 at 7:07 pm. 3 comments already!

More from our screwed up judicial system that makes you go “huh”? Do these guy in lower federal district courts (or Circuits, for that matter) pay *any* attention whatsoever to the SCOTUS?

Apparently not. On Friday, US District Judge Jeffrey S. White denied the Obama DOJ’s motion to dismiss the suit of Padilla v Yoo, where Padilla accused Yoo rendering legal memos that led to his “severe abuse” in a Naval brig for over three years. (Read the original complaint) The “severe abuse”, as defined in his complaint:

…. For nearly two years, Mr. Padilla was held in complete isolation and denied all access to the court system, legal counsel and his family. He was subjected to mistreatment including, but not limited to extreme and prolonged sleep and sensory deprivation designed to inflict severe mental pain and suffering; exposure to extreme temperatures; interrogation under threat of torture, deportation or even death; denial of access to necessary medical and psychiatric care; and interference with his ability to practice his religion. In the year and a half Mr. Padilla remained in the Brig after he was granted limited access to legal counsel, much of this severe abuse continued.

Padilla’s attorneys’ argue that it was Yoo’s legal memoranda that provided proximate legal basis for his “severe abuse”.

The WSJ legal blog noted shortly after the Inaugural, the Obama admin DOJ found itself with odd bedfellows by continuing the Bush DOJ strategy advocating dismissal of the charges. This was especially ironic, as noted by Josh Gerstein at Politico, because Obama’s pick to head the Office of Legal Counsel, Dawn Johnsen. Le femme Johnsen has been dubbed the “anti-Yoo” by liberal mag, Mother Jones, because of her strident criticism of Yoo’s memoranda – calling one of Yoo’s memos “plainly flawed” and his defense of it “irresponsibly and dangerously false.”

If it’s not almost laughable that those who spent their entire campaign debasing the Bush admin, then pick up where they left off not only in policy, but in legal defense strategy, it’s pathetic to find that Judge White chooses to ignore a SCOTUS ruling merely weeks ago. In that ruling, Javaid Iqbal, a Pakistani Muslim detained for over a year in NYC following the 911 attacks, could *not* sue former AG John Ashcroft, FBI Director Robert Mueller, and a dozen or so others for their policies.

Where is the logic? Or could it be Judge White was mentally vacationing, and paying no attention to SCOTUS when considering a similar situation of “supervisory liability”. And, in fact, since Yoo would have no constructive knowledge of what was being done with his legal opinion by WH and intel officials, it’s impossible to consider he could bear any responsibility whatsoever for Padilla’s treatment in a military Brig. A legal opinion is just that… an opinion, not a mandate or policy.

But aware of the SCOTUS decision, White had to be. Even Josh Gerstein at Politico pondered the possibility the SCOTUS decision would tank Padilla’s mirror case in SC against Rumsfield/Ashcroft. As he pointed out, Obama’s DOJ filed new papers INRE the Padilla defense, specifically pointing to the SCOTUS rule.

The new papers point to the Supreme Court’s ruling, 5-4, last month that a Pakistani man arrested in the wake of the 9/11 attacks, Javaid Iqbal, had not made specific enough allegations to proceed with a lawsuit alleging discrimination by Attorney General John Ashcroft and FBI Director Robert Mueller. My story on that ruling is here.

“Iqbal compels the dismissal of the claims against the Individual Federal Defendants because, like the plaintiff in Iqbal, Plaintiffs here offer only ‘conclusory statements’ without pleading ‘sufficient factual matter to show’ that each Individual Federal Defendant purposefully and personally violated their constitutional rights.” the DOJ filing in South Carolina said. The California filing simply pointed to the Iqbal case, without explicit argument–a custom dictated by local practice since the case was already argued.

Gerstein does note that the analogy between Iqbal and Padilla may differ since Ashcroft and Mueller were not directly involved in the sweep of suspects held after 911. While he says that Padilla did have direct involvement with admin officials, I disagree that John Yoo, himself, had direct involvement with Padilla or his ultimate fate in military detention. Again… Yoo rendered a legal advisory opinion, but was not involved in formulating policy, nor implementing law enforcement action.

I’m more than curious to figure how this Judge finds Yoo may be personally culpable. However I don’t find any written opinion available yet by Justice White, and hence have only a few quotes he offers up as clarification for his anything but clear ruling. This opinion must have been concocted in a judicial vacuum, since his few statements totally ignore Iqbal.

White wrote, “The specific designation as an enemy combatant does not automatically eviscerate all of the constitutional protections afforded to a citizen of the United States.”

The decision keeps the lawsuit in place for further proceedings and a possible future trial.


In a 42-page ruling, White rejected a series of Justice Department arguments for dismissal of the lawsuit, including claims that courts should not interfere in executive branch military decisions and that Yoo could not be sued for his government work.

The judge wrote, “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct.”


UPDATE: According to a Jan 2008 post on Balkinization by David Luban, that argument for personal culpability by Yoo lies in his “membership” in a five-man panel of legal advisors to Bush, and called (by someone… media? Themselves?) the War Council. In addition to Yoo, others included Alberto Gonzales, David Addington, William J. Haynes, and Tim Flanigan. The Tom Lasseter article (linked above) in the Buffalo News obviously demonstrates bias when he describes their duties as:

The quintet of lawyers, who called themselves the “War Council,” drafted legal opinions that circumvented the military’s code of justice, the federal court system and America’s international treaties in order to prevent anyone — from soldiers on the ground to the president — from being held accountable for activities that at other times have been considered war crimes.

This should come as no surprise that a panel of legal advisors, pondering the dicey issue of detaining and interrogating suspected terrorists for a CIC, is described as a concerted attempt to “circumvent” justice by Mr. Lasseter… aka a McClatchy journalist hack.

My comment still stands. All CIC’s have legal advisors. They do not create nor implement the policy. They evaluate the situations from a legal perspective, advise the CIC, and all power of decision making and action lies with others.

However, the bright side to all this is… should this decision stand thru the appellate process… every one of Obama’s 20+ “czars” plus bloated admin should be quaking in their Ferragamo’s and Lanvin cap toe sneakers. END UPDATE:


But that’s not the end to the irony here. White, a 2002 Bush appointee, twice quoted Sandra Day O’Connor’s scribblings in a 2004 decision, saying …”a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.”

This of course makes one ponder… in the face of the SCOTUS Iqbal opinion, why does White believe that Padilla retains the right to sue administrative officials that serve only in an advisory capacity with no direct involvement in his fate? Just what supervisory liability does he believe Yoo has?

As I said in my previous Iqbal post (linked above), the SCOTUS opinion only appeared to fall on the side of the government officials when, in fact, some emphasis was placed on the petition being “deficient”… ala failing …”to plead sufficient facts to state a claim for purposeful and unlawful discrimination against petitioners.” Iqbal was remanded back to the lower courts, and it remains to be seen if they amend that petition that more clearly states discrimination.

But considering Iqbal/SCOTUS as it stands now, I am stunned to see how the NorCal District court failed to reference the SCOTUS decision in any way when considering his ruling. It makes you wonder if the left and right hands of the judicial system have a clue as to what the other is doing.

John Yoo has been a controversial figure on what many consider his more harsh stance on a POTUS’s ability to use force abroad without Congressional approval. While he did criticize Bill Clinton for his “Imperial Presidency”, he did support Clinton’s Serbian action as Constitutional. Perhaps, since he was born in Seoul, South Korea, he is acutely aware of the hazards of being soft when it comes to dictators and terrorists.

And frankly, I don’t have a problem with his description of what constitutes torture. Certainly Padilla’s laundry list of complaints – prolonged sleep deprivation and “psychological” abuse – strikes me reaching for the moon by using legal whining. Anything can be considered “mental abuse”, fer heavens sake. Wonder if that guy’s taken a good look around at what our Chicago-style POTUS, his lackies, and our Congressional members are doing to the private enterprise/business world right now?

But then, I guess threats and blackmail aren’t on the “torture” laundry list.

Here’s the real head scratcher… just how the heck did UC-Berkeley ever allow John Yoo to be a Distinguished Chair and Dean with their law school? At the moment, I believe he is a visiting professor down in Orange County, CA at Chapman University School of Law. Good thing… I can’t see Berkeley welcoming him back with open arms now.

But back to Padilla… lest anyone has sugar plum fairy visions of him as an upstanding US citizen and victim, he was found guilty of “…taking part in a conspiracy to murder, kidnap and maim people in Afghanistan, Chechnya, Bosnia, among other countries, in the years between 1993 to 2001. “ Padilla is now serving his 17 year sentence at the supermax prison in Florence, CO. And if Obama has his way, he’ll have friendly Gitmo detainees also in residence to keep him company.

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