Expect an interlocutory appeal from United States District Judge Jeffrey White's denial of John Yoo's motion to dismiss. And should the Ninth Circuit reject that appeal, expect a petition for certiorari to the United States Supreme Court. Then buckle your seat belt and await a ruling on the contours of litigation arising under 42 U.S.C. Section 1983 that has the potential to be as far reaching as Monroe v. Pape, decided in 1961.
Judge White ruled that John Yoo's decision to provide legal cover for the Government actors' shocking treatment of Jose Padilla may well be a violation of federal law. Mr. Padilla was taken into a custody at a Chicago airport and held for years without counsel, arguable denied access to a court, arguably subjected to unconstitutional conditions of confinement and interrogation, arguably denied freedom of religion, arguably subjected to an unreasonable seizure and arguably denied due process of law.
I say arguably in each instance because the no Court has yet ruled on whether these violations took place. Yoo's lawyers filed a motion to dismiss the complaint contending, for a variety of reasons, that Yoo enjoyed immunity, including, significantly, qualified immunity from suit. As a result of filing this motion, the District Court was obligend to take all of Padilla's allegations as true. Indeed, from the public record in this case, there seems to be no doubt that the Government treated this citizen as a man without a country and subjected him to treatment in an American Gulag.
Judge White's 42-page ruling is short on rhetoric and long on bed-rock law. The rights Padilla claims to have lost are fundamental. Yoo's role in the Bush administration clearly amounted to a condonation of policies that proximately caused great harm. Padilla has stated a claim under the Bivens v. Six Unknown Agents of Federal Bureau of Narcotics. (Novices in federal civil rights law take note: The Ku Klux Klan Act, 42 U.S.C. Section 1983, permits a claim for damages against state actors acting under color of law, a remedy famously upheld against members of the Chicago police department in Monroe v. Pape. Because the act is silent as to federal officials, the authority for bringing claims against federal agents, although rooted in the same concerns about abuse of power, is, in fact, authorized under Bivens.)
White is undoubtedly right that the manner in which Padilla was allegedly treated violated the Constitution. But I have my doubts about whether the Supreme Court will permit the suit to advance. Indeed, I suspect this suit will die on the shoals of authoritarian indifference.
That's not because discovery in this case would require penetration of the state-secrets privilege. The case against Yoo will be made largely by reliance on public documents, including a book Yoo himself wrote. What concerns me is a seeming hostility on the part of the federal courts to claims arising under 42 U.S. Section 1983.
In the past two decades, qualified immunity has been used as a chain saw to saw the legs out from beneath many federal civil rights claims. Dicta supporting the doctrine contends that it is intended to protect all but the plainly incompetent from the risks and rigors of trial. Thus, a cop has to go pretty far these days face trial for misconduct. Courts bend over backwards to shield officers from trial. Most civil rights cases never see a jury, but are disposed of by way of summary judgment.
In Yoo's case a reviewing Court will most likely succumb to the temptation to dismiss Padilla's claim on a new and novel reading of Harlow v. Fitzgerald, the lead qualified immunity decision.
Under a traditional qualified immunity analysis, a defenant gets relief if his conduct was either not against clearly established law, or if reasonable people similarly situated to the defendant could disgree about whether his conduct was unlawful. The doctrine gives the benefit of the doubt to Government officials in close cases.
Judge White is right that the conduct endured by Padilla is not a close case. The outrages Padilla endured are a mockery of the very values this nation presumably fights to protect in the so-called war on terror. Qualified immunity should be denied under existing law.
But, I am afraid, the Court will not stop here.
We have never, as a nation, come fully to terms with the Japanese internment cases in World War II, in which our Supreme Court opined that the power to wage war is the power to wage war successfully. Sure, we have repented as a nation for locking up Americans in concentration camps merely on the basis of their ethnicity and offered token reparations. But, as a matter of law, I fear the Court will still defer to the imperatives of the Government's war-making powers.
Watch the Padilla case closely. My forecast is an expansion of the qualified immunity doctrine. Yoo will be held immune not because the conduct he condoned is acceptable in general cases, but because the conduct was condoned at a time and under circumstances in which the Government believed national security and safety was at risk. This new third prong of the qualified immunity doctrine will lope gracefully off the pages of an as yet written opinion: I can hear the snarling of the wolf it will unleash even now.