Padilla vs Yoo

Ady Barkan has a great piece in Slate about the case of Padilla vs Yoo which he characterizes as the best chance going to see some legal accountability for torture. The key point is that a week ago judge Jeffrey Wright rejected Yoo’s requests to dismiss the case, requests that had actually been supported by the Obama administration. Now we’re in a situation where an actual trial might take place, complete with a discovery process and some light being shined on what was going on. But what role will the Obama administration plan?

Barkan says they have three options:

First, it can accept the decision rather than appeal. This would allow Padilla’s attorneys to proceed with the evidence-gathering of discovery: reviewing Yoo’s classified memos, reading his e-mails, and even questioning him under oath. Although the government could try to keep what Padilla gleans from this confidential, Padilla’s lawyers will correctly argue that the public has a strong interest in seeing the material: The American people deserve to know which officials set our interrogation and detention policies. Scores of detainees would then use the evidence from Padilla’s discovery to establish their own plausible legal claims. The administration isn’t likely to go for any of this.

Second would be to continue down the path Obama’s trailed thus far, and keep on embracing the strong, Bush-style conception of the state secrets doctrine. This, he thinks, “would draw international condemnation and would surely give momentum to the Senate’s current effort to roll back the privilege by statute.” Last, they could simply argue that Yoo should be immune from prosecution which would likely wind up pushing this issue to the Supreme Court. In any essence that ought to lead to the torture accountability issue returning to the front pages.