U.S. Rep. Pete Hoekstra, a member of the House Intelligence Committee and Republican candidate for governor, used his Twitter account this morning to respond to a federal court ruling from California:

Judge in San Fran allows terrorist to sue Bush Administration. This is crazy on the surface and will be expensive.


Hoekstra, a Holland Republican, is referring to a ruling on Friday by Judge Jeffery White rejecting the government’s motion to dismiss a lawsuit brought by Jose Padilla against John Yoo, a former attorney in the Office of Legal Counsel and now a professor of law at Berkeley, the principal architect of the Bush administration’s legal defense of torture.

Padilla, an American citizen, was arrested and designated as an enemy combatant by the Bush administration in May, 2002. He spent nearly 4 years in a military prison without charges being filed, without access to an attorney or any of the other basic rights guaranteed by the Constitution. While there, he was routinely abused during interrogation. The Bush administration maintained that he had been plotting to set off a radioactive “dirty bomb” in the United States.

Attorneys filed a habeas corpus case in federal court on Padilla’s behalf, arguing that the government cannot hold an American citizen indefinitely without charging them or giving them the opportunity to defend themselves in court, as the Bill of Rights clearly says.

Yoo had written the legal opinions for the Bush administration asserting that the Bill of Rights did not apply here because those constitutional guarantees “give way before the Government’s compelling interest in responding to a direct, devastating attack on the United States, and in prosecuting a war successfully against international terrorists.”

After the Supreme Court had ruled in another case involving a U.S. citizen being detained indefinitely without charges, Hamdi v Rumsfeld, Padilla was transferred from the military prison to a civilian prison and charged with conspiracy. Despite the fact that there was no mention during that trial of any “dirty bomb” plot, any plots to kill anyone in the United States or even any links to Al Qaeda — the claims the government had made for years as justification for keeping him locked up without charges — Padilla was convicted by a jury and is currently serving a 17 year sentence. His appeal of that conviction is still pending in court.

In this lawsuit against Yoo, both the Bush and Obama administrations have argued, along with Yoo himself, that the case should be dismissed for various reasons. Judge White, who was appointed to the federal bench by George W. Bush in 2002, rejected those arguments in Friday’s ruling (PDF).

The ruling relied primarily on a recent 9th U.S. Circuit Court of Appeals ruling that rejected a broad interpretation of the state secrets privilege. Both the Bush and Obama administrations have argued that any case on any issue “must be dismissed regardless of its stage if it cannot be litigated further without risking disclosure of state secrets.”

The San Francisco-based 9th Circuit rejected that broad reading of the state secrets privilege a few weeks ago in a separate case involving a challenge to the Bush administration’s policy of “extraordinary rendition,” whereby detainees were transferred to another country where they were tortured during interrogations. The appeals court ruled that there are valid procedures in place to prevent the release of classified information during trials and that the government had to assert that privilege in regard to each piece of evidence requested rather than as a general means of dismissing any case that they claim involves classified information.

Judge White cited that appeals court ruling in his order rejecting the motion to dismiss in the Yoo case, noting that the extremely broad version of the state secrets privilege being asserted by the Bush and Obama administrations “has no logical limit – it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

It is likely that Yoo will appeal today’s ruling, but since the 9th Circuit has already rejected the broad reading of the state secrets privilege it seems unlikely that he will win that appeal. The Supreme Court has not yet ruled on this or any similar case but there are several cases where the government is making a virtually identical claim about the courts having to dismiss any case involving secret information, it is likely that one of them will eventually be heard by the high court.