Saturday, June 13, 2009
Federal Judge Jeffery White in San Francisco has substantially denied the motion to dismiss the civil complaint filed by Jose Padilla against John Yoo, formerly of the DOJ, now on leave from UC-Berkeley (Boalt Hall).
In a 42 page opinion (download here), Judge White begins rather grandly:
The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect.
However, the judge soon provides a detailed recitation of the allegations of the complaint and then engages in a closely reasoned opinion relying on United States Supreme Court precedent as well as numerous Ninth Circuit cases. Judge White acknowledges the separation of powers issues in this Bivens complaint, and interestingly has this comment about Yoo's argument for absention:
Order at 22.
The Judge's Order denies the motion to dismiss "as to all claims with the exception of the claim for violation of Padilla’s rights under the Fifth Amendment against compelled self-incrimination." The Judge granted Yoo's motion because "there is no allegation in the complaint before this Court that Padilla was ever made to be a witness against himself or that his statements were admitted as testimony against him in his criminal case," and thus "he has not stated a claim for violation of the Self-Incrimination Clause of the Fifth Amendment." Order at 37. Padilla has leave to amend this allegation by July 10. Yoo has twenty days to file his responsive pleading.
This is an opinion worth reading, just as this case will be worth watching as it proceeds.