My law school roommate has been sued by convicted terror plotter Jose Padilla:
Jose Padilla, the American citizen who was held in military detention for more than three years as an enemy combatant, filed a lawsuit Friday against a former Justice Department lawyer who helped provide the legal justifications for what the suit says was Mr. Padilla’s unconstitutional confinement and “gross physical and psychological abuse.”
The lawyer, John C. Yoo, now a law professor at the University of California, Berkeley, wrote or helped prepare a series of legal memorandums on interrogations and the treatment of detainees after the Sept. 11 attacks.
A lawyer for Mr. Yoo, Eric M. George, called Mr. Padilla’s suit “a political diatribe” that “belongs, at best, in a journal, not before a federal court.”
Mr. Padilla, 37, was transferred from military custody to the criminal justice system in 2006, and in August he was convicted of terrorism-related charges in Miami. He awaits sentencing.
The new lawsuit, filed in federal court in San Francisco, seeks only one dollar in damages. “That’s what Padilla directed us to ask for,” said Jonathan M. Freiman, one of Mr. Padilla’s lawyers. “At bottom, this isn’t about money. It’s about right and wrong.”
John was well to the right of me in law school, at least on stuff like this. We did not talk about politics or even law much, though. Our interests didn't mesh. He was interested in esoteric issues of federal jurisdiction and executive powers and I was interested in property law and land-use controls. The one significant exception occurred when he got assigned a regulatory-takings case for moot court. I got stuck with some Establishment Clause case about prayer at a high-school graduation that I couldn't have cared less about. I spent more time working through the fine points of the takings issues with John than I spent thinking about my own case.
We were a real odd couple -- an urbane Philadelphian and a snuff-dipping redneck from Mississippi. We rented a house on the shore of the Long Island Sound in a New Haven suburb. It was a long way from the law school, too far really for me to justify going to class, so I spent my time skipping Bankruptcy and watching the Movie Channel. John spent his time editing articles for the Law Journal, hobnobbing with professors, and doing the other things that overachievers do.
John is a very smart guy (he was tenured at Berkeley by 30 or some such ridiculous age) and a thoughtful guy, media portrayals notwithstanding. He knows his stuff, and has a calm, reasonable style that can be very persuasive. (After all, he convinced a slew of seasoned government lawyers to sign on to his legal analyses.)
I always thought John was wildly off the mark with Padilla, though. How can a US citizen apprehended on US soil be held without trial merely because the executive has classified him as an "enemy combatant"? John has some precedent involving saboteurs apprehended on a beach during World War II, but it never seemed that persuasive to me.
Still, I can't believe this case is worth the filing fee:
The suit is based in part on a recent book by Jack Goldsmith, a Harvard law professor who, while serving in the Justice Department in 2003 and 2004, disavowed some of Mr. Yoo’s work. In the book, “The Terror Presidency” (W.W. Norton), Mr. Goldsmith wrote that two of Mr. Yoo’s memorandums were “legally flawed” and “tendentious in substance and tone.”
I freely confess my bias in favor of my friend and my lack of familiarity with the case law governing this type of civil-rights claim. But I am skeptical that a court will allow a government lawyer to be exposed to civil-rights liability for a legal analysis he prepared for his client. That would, quite predictably, chill candid legal advice. (I'm sure one of the ulterior motives of this suit is to do just that). In any event, mere evidence of "tendentiousness" won't be enough -- they hand out tendentiousness with the law degree. Even if the court allows the claim to proceed, I imagine it will require proof the analysis was prepared in bad faith or without a colorable basis or something similar. Padilla won't be able to prove that.
Anyway, I hope this thing gets thrown out for my friend's sake.
Now back to our regularly scheduled programming . . .