Comment on Padilla v. Yoo

Yesterday I reported (here) that the Court of Appeals for the 9th Circuit issued an opinion in which it held that John Yoo, one of the legal architects of the Bush administration policy on torture, is entitled to qualified immunity because - according the the opinion - "it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.”

Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney.   The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

You can read the full comment here.