In 2002, Justice Department lawyer John Yoo wrote a memo recommending that Jose Padilla, arrested in Chicago in the wake of 9/11 and held on suspicion of plotting a dirty-bomb attack, be classified as an enemy combatant. Yoo also wrote memos arguing that American law does not prevent the president from ordering such enemy combatants tortured. This January, after enduring years of abuse in prison, Padilla sued Yoo for violating his constitutional rights.
And a week ago, Judge Jeffrey White ruled that Padilla's allegations were plausible enough to justify denying Yoo's motion to dismiss the lawsuit. White was appointed by George W. Bush the year Yoo was writing his memos.
White's decision is the first of its kind: Until now, although other lawsuits have been brought, no government official has faced personal liability for his role in the torture or deaths of detainees. But it probably won't be the last. These cases are just beginning to address the fraught questions of justice that have emerged in the aftermath of the Bush era—what atrocities were committed in the name of national security, who bears responsibility, and how should they be punished? Although neither the Obama administration nor most members of Congress want to deal with these questions directly, they're even more opposed to letting judges (and juries) take a crack at them. Padilla v. Yoo is an example of a surprising development: a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration. It could help spawn more such rulings.
Victims of torture can seek damages in federal court because the Constitution gives private individuals the power to sue government officials who violate their fundamental rights. In 1971, the Supreme Court said that Webster Bivens could seek money damages from the federal drug enforcement agents who had searched his apartment illegally. Since then, Bivens liability has become a crucial tool for punishing police abuse and thus also deterring it.
Padilla and other 9/11 detainees aren't interested in suing the interrogators and guards who abused them. (And money isn't the issue, either—Padilla is seeking $1.) Their real goal is judicial condemnation of the government officials who authorized the unconstitutional treatment. That's why Padilla is going after Yoo, who in addition to writing legal memos also, Padilla says, played a policy-making role. In a separate suit in South Carolina, Padilla is also suing other former Bush officials who controlled the military brig where he was held, including Donald Rumsfeld and Alberto Gonzales.
In order to hold high-ranking government officials liable, plaintiffs need strong evidence that the officials personally authorized the conduct. Just last month, the Supreme Court made it a lot harder to get that evidence: It dismissed the lawsuit brought by Javaid Iqbal, who was rounded up in New York after 9/11 along with thousands of other Muslims, against John Ashcroft. The court held that Iqbal hadn't provided enough preliminary evidence to justify "subjecting high ranking Government officials ... to the burdens of discovery." That's right—he didn't have enough evidence to go get the evidence he needs to prove his claims.
In light of Iqbal, Judge White's opinion represents a crucial precedent. White held that Padilla has made sufficiently specific allegations to justify discovery against John Yoo and that Yoo's official status as a DoJ lawyer did not give him immunity from suit. White understands the highly political environment that he's in. Summarizing recent reports about Obama's disinterest in criminal prosecution and the lack of progress in Congress on a truth and reconciliation commission, the judge wrote that "[a]lthough the Court does not rely on the state of current events to support its decision, it is aware that other branches of government and professional forums have not acted to provide an alternative remedy for the constitutional violations alleged in this case."
White's decision is a major blow not only to past Bush officials but also to Obama's DoJ, which urged White to throw out the lawsuit. The new administration has repudiated Yoo's legal memos, but it still defended him in court. Now, the administration has three options.