Terrorist Can Sue Former Government Lawyer

After the terrorist attack on September 11, 2001, the Bush administration faced the novel task of ascertaining how to respond to a murderous attack on American soil by enemies who were not a formal country. Among other things, it thus requested legal analysis of the myriad issues raised by this unprecedented situation. One of the attorneys who provided legal analysis and memoranda is John Yoo, then a Deputy Attorney General at the Office of Legal Counsel and now a law professor at Berkeley.

Brooklyn born Jose Padilla is a former gang-banger with a lengthy criminal record who apparently converted to Islam while in prison for manslaughter. Subsequent to his conversion and release from prison, he traveled to, among other places, Afghanistan, Pakistan, and Saudi Arabia. Upon his return to the United States in 2002, he was arrested on suspicion of being involved with a plan to set off a “dirty bomb” within the United States.

Padilla was later classified as an “enemy combatant” and transferred to a military prison. He claims that while he was there he was subject to sleep and sensory deprivation, threats, and that he was forced to sit and stand. Padilla never claimed to have been subject to water boarding.

Padilla’s detention as an enemy combatant was upheld by a United States Court of Appeal on the basis he was closely associated with al Qaeda, had engaged in preparation of acts of terror, and was a threat to the security of the United States. A second legal challenge by Padilla to his detention was also denied by the courts.

Padilla was never tried on the charges for which he was initially detained but in August, 2007, following a three-month trial in a federal court in Miami, he was convicted of conspiracy to murder, kidnap, and maim, and other counts of aiding Islamic terrorists, for which he is now serving his 17-year prison sentence.

In January, 2008, Padilla sued attorney John Woo for damages arising from his detention as an enemy combatant. The government moved to dismiss the lawsuit, including based on governmental immunity. In a decision issued on June 12, 2009 that has surprised many legal pundits, United States District Court Judge Jeffrey White denied the government’s motion and held that the lawsuit against attorney Yoo could proceed. According to Judge White, "government lawyers are responsible for the foreseeable consequences of their conduct."

Of course, attorney John Yoo never arrested, detained, or interrogated Padilla. But--according to Judge White anyhow--Yoo’s legal analysis and memoranda may have “set in motion a series of events” that Padilla could show resulted in the deprivation of his constitutional rights.

No word yet from the Obama administration’s Justice Department on whether the government intends to appeal this decision. Many legal experts do expect such an appeal.

A separate lawsuit by Padilla against former Attorney General John Ashcroft has been filed in federal court in South Carolina