The WSJ Law Blog spots an interesting development:
In June, as we blogged here, a San Francisco federal judge ruled that convicted terrorist Jose Padilla can sue Yoo, the Bush administration lawyer who authored some of the now famous war-on-terror memos, including one that opined the military can use “any means necessary” to hold suspected terrorists. …
Yoo has now turned for help to Miguel Estrada, the powerhouse Gibson Dunn appellate litigator who was nominated by Bush to serve on the D.C. Circuit Court of Appeals. Estrada’s nomination was scuttled by Democrats, a point repeatedly harped on by Republican senators in the Sotomayor confirmation hearings. (Okay, we can only turn away from Sonia for so long.)
The Justice Department had been defending Yoo in the Padilla suit, but DOJ has agreed to foot the bill for Estrada’s services, according to an article today in The Recorder. Conflicts of interest are behind the change in counsel, ethics experts say.
“The department so far has been able to provide direct representation in this case by arguing that the lawsuit should be dismissed for qualified immunity reasons, and that remains the department’s position,” a Justice spokeswoman told the Recorder. “But as this case moves forward, the defendant deserves the opportunity to retain defense counsel that can make any and all arguments available on his behalf.”
I’ve discussed qualified immunity before on this blog. In short, as described by Harlow v. Fitzgerald, 457 U.S. 800 (1982):
government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
For more on the specific ruling in the case against Yoo, see this post by Jonathan Turley. Up until now, the Department of Justice (under Obama) had conducted Yoo’s defense, and had angered civil libertarians by requesting the court dismiss Padilla’s case on several grounds, including qualified immunity.
It’s typical for federal government officials to be represented by the U.S. Attorneys and the Department of Justice, since the United States indemnifies its officials for damages awarded against them for conduct taken as part of their office, including for constitutional violations.
A "conflict of interest" isn’t the right way to describe what happened here. The Department of Justice and Yoo have the same interest, which is to dismiss the case promptly or to minimize their liability.
What really happened here is revealed by the bolded quote above. It appears Yoo is going to make arguments on his behalf that the Department of Justice itself is unwilling to support.
That’s good news for civil libertarians. Even though the Department of Justice initially sought to dismiss the suit on standard "qualified immunity" grounds, it appears the Department of Justice will not support Yoo’s actual constitutional arguments, like how the President is "free from the constraints" of the Fourth Amendment (and the rest of the Bill of Rights) even when ordering domestic military action. (If the Department of Justice agreed, there would be no need to withdraw.)
Indeed, the Department of Justice might end up admitting that Yoo’s opinions were erroneous and did not accurately state the law. Were I Padilla’s lawyers, the first discovery I’d send would be a request for admission to the the United States establishing that.
A important case to watch, and perhaps the only vehicle by which we’ll have a legal accounting of what really happened behind closed doors in the Bush years.