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Judge White And Wrong

He'll probably get overturned on appeal, but if and when he does, at least U.S. District Judge Jeffrey White will have gone down fighting and with candor.

The federal trial judge in Northern California declared late Friday in a 42-page ruling that a civil lawsuit against John Yoo could proceed, at least for the time being, to determine whether the torture-memo scoundrel can be held legally accountable for his role in authorizing and enabling the Bush Administration's odious torture policy.

The case is styled Padilla v. Yoo and, yep, you guessed it, this means that old friend Jose Padilla is back in the news again. The once-upon-a-time so-called "dirty bomber" (now just a plain old felon serving a terror conspiracy sentence) claims that he suffered "gross physical and psychological abuse at the hands of federal officials" authorized and immunized by Yoo's warped legal reasoning.

Padilla is seeking $1 in damages, and a ruling that his treatment was unconstitutional.

Remember, he's the U.S. citizen who spent years in a military brig, incommunicado, without charges, and subject to precisely the sort of "enhanced" interrogation practices that Yoo envisioned.

The Justice Department is defending Yoo (which in itself has generated no small amount of controversy), and contends that the former Bush Administration lawyer was lawfully working in his official capacity and within the boundaries of the law when he drafted torture memos and helped implement the policies and practices behind them.

Backing up its predecessor (which it had scorned on this point during the election campaign), the Obama Administration points to strong legal and historical precedent which recognizes immunity and other protections for policy decisions made by executive branch officials.

Judge White, a 2002 Bush appointee, isn't buying it. He found that Padilla had, indeed, "alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla's constitutional rights."

The case now will face many other legal obstacles, but this early one has been jumped. One big reason why, the judge recognized, is that "there is no claim that Congress has provided an alternative remedy in this context and the Court has found none. The Court finds that Padilla has no other means of redress for the alleged injuries he sustained as a result of his detention and interrogation."

In other words, Judge White says the federal courts are required to weaken protections for people like Yoo and strengthen rights for people like Padilla when the other two branches of government won't remedy clear constitutional violations. "There is no authority evidencing a remedial scheme for designation or treatment of an American citizen residing in America as an enemy combatant," the judge wrote, and "indeed, Yoo does not proffer an alternative remedy or demonstrate that an alternative branch of government has occupied the field."

The case also involves more than a few Kafkaesque elements. For example, the feds now say that a long-ago resolved habeas corpus court case they fought so hard to preclude Padilla from getting should have been the one in which he raised these claims. And Yoo claims that the courts shouldn't review the drafting or contents of his controversial memos because the memos created what the judge called "legal cover" against such a review. Again, Judge White didn't buy those arguments, or a handful of others ginned up by the Justice Department's best and brightest.

None of this means that we'll be seeing Yoo at a defense table in federal court any time soon. The case is still in its nascent stage — the judge allowed it to continue as a matter of law in part because he's required to assume that every Padilla allegation is true and can be proven. The government still has many other legal arguments to make, including the controversial "state-secrets" doctrine (to which judges generally give great deference). And there is still an open question (to be resolved at trial perhaps) of the causal link between Yoo's words and Padilla's treatment.

Even Judge White's current decision is precariously placed. He's just a trial judge, after all, and not the last word on this high-profile case. The increasingly conservative 9th U.S. Circuit Court of Appeals now will probably take a look at the serious issues presented and, if Padilla somehow prevails there, he'll have to face the even more conservative United States Supreme Court. The Justices — with or without Judge Sonia Sotomayor replacing Justice David H. Souter — are unlikely to look as favorably upon this case as it has on other challenges to Bush-era terror law.

This isn't the beginning of the end for Yoo. It isn't even the end of the beginning. But at least now one federal judge has recognized under the law what has been apparent in fact for many years: Whatever he was, and whatever he is, Padilla deserved more than he got from his own government. And whatever he was and whatever he is, Yoo deserves less.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here.
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