The following editorial first appeared in the Washington Post:
Jose Padilla, the onetime alleged dirty-bomb plotter, this month sued John Yoo, the onetime Bush legal adviser who played a key role in crafting the so-called torture memos. The lawsuit is of dubious legal merit, but it contains allegations that ought to grab Congress's attention.
Padilla, a U.S. citizen, claims his constitutional rights were violated because he was held as an enemy combatant for almost four years. He also claims in the lawsuit, filed in a San Francisco federal court, that he was subjected to acts that amount to torture. These include extended periods of solitary confinement, disorienting sleep and sensory deprivation, "extreme and deliberate variations" in temperature, "loud noises at all hours of the night," "markedly uncomfortable and painful (or 'stress') positions," "noxious fumes that caused pain and discomfort to his eyes and nose," threats of severe physical injury and death, and "psychotropic drugs." Padilla also claims that he was prevented from bathing for weeks at a time and was forcibly "groomed."
Padilla asserts that Yoo, a former lawyer in the Justice Department's Office of Legal Counsel and now a law professor at the University of California at Berkeley, should be held personally responsible because he provided the legal and policy guidance that allowed the alleged abuse; Padilla filed a similar lawsuit against former Defense Secretary Donald H. Rumsfeld, among others. Padilla's legal contention is far-fetched. A federal appeals court ruled that he was legally detained.
Yoo's memo was breathtakingly broad and, we believe, wrong because it gave too little consideration to constitutional and statutory provisions that should have been a check on the president's power. The Justice Department ultimately repudiated it. But Yoo is almost certainly entitled to immunity from personal liability because he was acting in his professional capacity in advising the executive. Unless Padilla is able to prove that Yoo was either incompetent or acted in knowing violation of the law, the lawsuit should be dismissed. Allowing the lawsuit to go forward could also have a chilling effect on administration lawyers who may fear being held individually liable for giving candid advice.
Nonetheless, lawmakers should examine Padilla's allegations. Padilla was convicted last summer of conspiracy to murder, maim and kidnap and of providing material support for terrorism; his claims may be wildly exaggerated. But there is no way to know without a thorough examination; given the sad administration record of the past six years, the allegations are not incredible.