Law alumni face off over Padilla case

Beyond the deceivingly cozy wood paneling of the Gothic-spired Sterling Law Buildings, a dispute over the nature of torture and civil liberties in war time has pitted two Law School alumni against each other in a high-profile public showdown.

Visiting Law School lecturer Jonathan Freiman LAW ’98 has come under fire from pundits and politicians in over the past week for agreeing to represent Jose Padilla — who was convicted last August for conspiracy to murder and kidnap people overseas — in a suit against former Deputy Assistant Attorney General John Yoo LAW ’92, the author of Bush administration guidelines for harsh interrogation and detention tactics known as the “Torture Memos.” In the suit, filed earlier this month, Padilla alleges that the practices Yoo authorized are unconstitutional.

Frieman — who in 2002 co-founded the National Litigation Project with Law School Dean Harold Hongju Koh to encourage U.S. courts to respect international human rights laws — has deflected outside criticism, including a harsh rebuke from the editorial board of the Wall Street Journal, by arguing that Padilla’s conviction does not negate his constitutional right not to be tortured.

“This is a valid lawsuit against a government official who authorized torture against an American citizen in an American prison,” Frieman said in a statement to the press after filing the lawsuit. “There is a long line of cases holding government officials personally accountable for violating clearly established Constitutional rights.”

Freiman said in a letter written to the editor of the Journal that the Law School was largely uninvolved in Padilla’s decision to sue Yoo, who is now a law professor at the University of California, Berkeley.

Koh declined to comment about the case.

The Journal’s Jan. 10 editorial, entitled “Yale and the Terrorist,” claims Padilla’s rights were not violated and that Yoo is not liable because his actions were authorized by former Attorney General John Ashcroft ’64 and President George W. Bush ’68.

The lawsuit asserts that Padilla, who was arrested in 2002, was tortured and denied medical treatment and contact with legal counsel and family members during his time in prison. Padilla’s suit alleges he was tortured and held in isolation in an American military brig in South Carolina for three-and-a-half years as a direct result of decisions made by Yoo, who worked for the Bush Administration from 2001 until 2003.

Padilla is seeking $1 in damages and a ruling that Yoo’s actions violated the Constitution.

“The law is clear that a plaintiff doesn’t have to seek a million dollars to be seeking a tangible benefit — one dollar is enough,” Freiman said. “Of course, if the complaint had asked for a lot of money, it probably would have been criticized for that. What exactly is the right recompense for torture?”

Yoo declined to comment to the News on the case, but he and his lawyer, Edward George, have told other media outlets that the case is a political stunt and will not be taken seriously by the courts.

Padilla has filed similar lawsuits in South Carolina against other government officials involved in writing the “Torture Memos.” Contrary to claims made by many of the lawsuit’s critics, Freiman said Yoo was not merely a “mid-level employee” whose actions were authorized by his superiors but a major player in formulating Bush’s terrorism policies.

“Yoo’s position was one of the most important legal positions in the federal government,” Freiman said. “In fact, Yoo was part of the five-person ‘War Council’ that set detention and interrogation policies.”

Although the outcome of the suit will not have any effect on Padilla’s ongoing sentencing hearings, Freiman says he hopes the suit will set a precedent for human rights cases in the United States.

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