John Yoo must answer civil rights suit by Jose Padilla

Judges at the trial level are taught to defer to those above. The habit of mind that tends to find a conciliatory approach, to reach for consensus, to narrow difference is deeply embedded in judical temperament. But choices must be made when adversaries press a point - as have the attorneys for plaintiff Jose Padilla, the al Qaeda supporter who suffered at the hands of captors whose methods were authorized by the opinions of high ranking lawyers in the United States Department of Justice - John Yoo, now a Berkeley law professor.

Jeffrey S. White, a federal judge of the Northern District of California, has confronted such a moment. He has allowed a "Bivens" civil rights action to proceed against the former Justice Department lawyer. 42 USC 1983, the post civil war statute authorizing lawsuits against oppression by state officials does not reach federal officers. For that the United States Supreme Court, in the landmark Bivens v. Six Unknwon agents of the Federal Bureau of Narcotics, said that the constitution itself authorizes a civil remedy. That 1971 opinion by Justice William Brennan is the foundation on which Padilla's complaint and White's opinion, rest.

Judge White recognizes the choices to be made. Here is his opening statement. A link to the full opinion follows.

[War] will compel nations the most attached to liberty to resort for repose and

security to institutions which have a tendency to destroy their civil and political

rights. To be more safe, they at length become willing to run the risk of being

less free.

The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).

The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect. After the brutal and unprecedented attacks on this nation on September 11, 2001, the United States government responded to protect its citizens from further terrorist activity. This lawsuit poses the question addressed by our founding fathers about how to strike the proper balance of fighting a war

against terror, at home and abroad, and fighting a war using tactics of terror.

Padilla v. Yoo: Order Granting in part and Denying in Part Defendent's Motion to Dismiss

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Post-script:

Brian Tamanaha has a supportive summary of key elements of Judge White's ruling (e.g. on qualified immunity) , and many readers comment at Balkinization here. - gwc

PPS: John Yoo has filed his brief on appeal HERE