COMPLAINT
NATALIE L. BRIDGEMAN
Law Offices of Natalie L. Bridgeman, Esq.
San Francisco, CA 94105
JONATHAN M. FREIMAN (pro hac vice pending)
HOPE R. METCALF (pro hac vice pending)
National Litigation Project
Lowenstein International Human Rights Clinic
Attorneys for Jose Padilla and Estela Lebron, Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
Jose Padilla and Estela Lebron, Plaintiffs,
v.
John Yoo, Defendant.
INTRODUCTION
1. Plaintiff Jose Padilla is a United States citizen who was
imprisoned as an “enemy combatant” in a military brig, without charge
and without ability to defend himself or challenge his conditions of
confinement for three years and eight months. Throughout those years,
Mr. Padilla suffered gross physical and psychological abuse at the
hands of federal officials as part of a systematic program of abusive
interrogation intended to break down Mr. Padilla’s humanity and his
will to live. For nearly two years, Mr. Padilla was held in complete
isolation and denied all access to the court system, legal counsel
and his family. He was subjected to mistreatment including but not
limited to extreme and prolonged sleep and sensory deprivation
designed to inflict severe mental pain and suffering; exposure to
extreme temperatures; interrogation under threat of torture,
deportation and even death; denial of access to necessary medical and
psychiatric care; and interference with his ability to practice his
religion. In the year and a half that Mr. Padilla remained in the
Brig after he was granted limited access to legal counsel, much of
this severe abuse continued.
2. Mr. Padilla’s detention, conditions of confinement, and program of
interrogation were unlawful and violated, inter alia: his rights to
procedural and substantive due process; his right to be free from
cruel or unusual punishment and treatment that shocks the conscience
and/or violates United States laws and regulations; his right freely
to exercise his religion; his right to access information; his right
to association with family members and friends; his right of access
to legal counsel; his right of access to court; his right against
compelled self-incrimination; his right against arbitrary and
unconstitutional seizure and detention; and his right to be free from
governmental conspiracies intended to deprive him of his rights,
privileges and immunities under the law.
3. The grave violations suffered by Padilla were not isolated
occurrences by rogue lower-level officials; to the contrary,
Defendant John Yoo, along with other senior officials, deliberately
removed Mr. Padilla from due process protections traditionally
available to U.S. citizens detained by their government and barred
all access to the outside world, including access to counsel. On
information and belief, Defendant Yoo and other senior officials then
personally formulated and/or approved and/or failed to act upon
actual or constructive knowledge of, a systematic program of illegal
detention and interrogation, which was specifically designed to
inflict, and did inflict, severe physical and mental pain and
suffering on Mr. Padilla for the purpose of extracting information
from him and/or punishing him without due process of law, and which
proximately caused the harms to Mr. Padilla alleged herein. Defendant
Yoo personally provided numerous legal memoranda that purported to
provide to senior government officials a legal basis to implement an
extreme and unprecedented interrogation and detention program – even
though such tactics are unprecedented in U.S. history and clearly
contrary to the U.S. Constitution and the law of war.
4. Mr. Padilla suffered and continues to suffer severe mental and
physical harm as a result of the forty-four months of military
detention and interrogation that he endured, detention and
interrogation for which Defendant Yoo personally purported to provide
a legal blank check.
5. Ms. Lebron was also injured by the conduct of the Defendant, which
caused her to be deprived of the virtually all contact with her son,
Mr. Padilla, for the duration of his illegal detention and
interrogation, in violation of her constitutional rights to familial
association and communication.
6. Plaintiffs Padilla and Lebron assert this complaint against
Defendant John Yoo in his individual capacity. Plaintiffs seek
monetary damages and declaratory relief.
JURISDICTION
7. This Court has subject matter jurisdiction under 28 U.S.C. § 1331
(federal question jurisdiction) and directly under the Constitution.
8. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) and (e).
INTRADISTRICT ASSIGNMENT
9. Defendant Yoo resides in Alameda County. Per Civil Local Rule
(“L.R.”) 3-2(c)-(d) and 3-5(b), this civil action may be assigned to
either the San Francisco or Oakland Divisions of the Northern
District of California.
10. Mr. Padilla is an American citizen. From on or about June 9,
2002, until on or about January 5, 2006 (the "Relevant Time Period"),
Mr. Padilla was detained as an “enemy combatant” at the Naval
Consolidated Brig at the Naval Weapons Station in Charleston, South
Carolina (hereinafter “Brig”). On January 5, 2006, Mr. Padilla was
transferred from the Brig to a federal detention center in Miami,
Florida, where he stood trial before Hon. Marcia G. Cook of the U.S.
District Court for the Southern District of Florida on criminal
charges unrelated to the allegations that had been used to justify
his military detention without charge. On August 16, 2007, the jury
returned a verdict of guilty; the judgment is currently subject to
appeal.
11. Ms. Lebron is an American citizen and the mother of Mr. Padilla.
For the Relevant Time Period, Ms. Lebron was denied virtually all
contact with her son, Mr. Padilla.
Defendant John Yoo
12. During part of the Relevant Period, from 2001 through May 2003,
Defendant John Yoo was Deputy Assistant Attorney General in the
Office of Legal Counsel. Upon information and belief, Defendant Yoo
is a citizen of the United States and a resident of California, where
he maintains his primary residence. He is sued in his individual
capacity.
FACTUAL ALLEGATIONS
13. On or about May 8, 2002, Mr. Padilla was arrested in Chicago
O'Hare International Airport, pursuant to a material witness warrant
issued by the U.S. District Court for the Southern District of New
York. He was transported to New York where he was held in custody in
a federal detention facility. He was assigned court-appointed
counsel, and a motion to vacate the material witness warrant was filed.
14. Mr. Padilla is not an enemy combatant and the basis for his
designation as such has never been reviewed by an independent tribunal.
15. Nonetheless, as Counsel to the President Alberto Gonzales
explained to the American Bar Association in a speech given on
February 24, 2004, attached hereto as Exhibit A, Attorney General
John Ashcroft personally considered and then recommended that Mr.
Padilla be militarily detained as an “enemy combatant,” without
access to counsel, courts, or family, and without due process of law.
16. In making this recommendation, Attorney General Ashcroft relied
upon a legal opinion from the Office of Legal Counsel (OLC). As
Defendant Yoo explains in his own book, War by Other Means, he was
personally responsible for preparing the OLC opinion and personally
recommended that Mr. Padilla be militarily detained as an “enemy
combatant,” without access to counsel, courts, or family, and without
due process of law.
17. Based upon Defendant Yoo’s legal opinion and Ashcroft’s
recommendation, President George W. Bush issued an order dated June
9, 2002, attached hereto as Exhibit B, declaring Mr. Padilla an
“enemy combatant” and directing Secretary of Defense Donald Rumsfeld
to take Mr. Padilla into military custody.
18. Although Mr. Padilla is not an “enemy combatant,” Mr. Padilla was
held in military custody at the Brig for three and a half years (from
June 9, 2002, until January 5, 2006) with neither criminal charge nor
fact-finding by any independent tribunal to review the basis for his
detention.
19. There was no statutory or constitutional authority for the
military seizure and detention of Mr. Padilla.
20. During his military detention in the Brig, Mr. Padilla was
intentionally subjected to a systematic program of illegal
interrogation and conditions of confinement that Defendant Yoo
justified through legal opinions purporting to permit illegal
conduct. The legal opinions prepared by Defendant Yoo (collectively,
“the Torture Memos”) included, but were not limited to:
a. A memorandum dated January 9, 2002 from Defendant Yoo to
Department of Defense General Counsel Haynes on the Application of
Treaties and Laws to al Qaeda and Taliban Detainees (attached hereto
as Exhibit C);
b. A memorandum dated January 22, 2002 to Alberto Gonzales, Counsel
to the President, on the Application of Treaties and Laws to al Qaeda
and Taliban Detainees, signed by Assistant Attorney General Bybee
but, upon information and belief, created by Defendant Yoo (attached
hereto as Exhibit D);
c. A memorandum dated February 26, 2002 to Department of Defense
General Counsel Haynes on Potential Legal Constraints Applicable to
Interrogations of Persons Captured by U.S. Armed Forces in
Afghanistan, signed by Assistant Attorney General Bybee but, upon
information and belief, created by Defendant Yoo (attached hereto as
Exhibit E); and
d. A memorandum dated August 1, 2002 to Counsel to the President
Gonzales on Standards of Conduct for Interrogation under 18 U.S.C. §§
2340-2340A, signed by Assistant Attorney General Bybee but, upon
information and belief, created by Defendant Yoo (attached hereto as
Exhibit F).
21. The program of illegal interrogation applied to Mr. Padilla and
authorized by the Torture Memos included conscience-shocking
interrogation techniques and conditions of confinement, detailed
below, intended to destroy Mr. Padilla’s ordinary emotional and
cognitive functioning in order to extract from him potentially self-
incriminating information. Some of these techniques and conditions
were included in the “JFCOM-approved plan” for an unidentified
individual detained at the Brig which was referred to by Vice Admiral
Church in his May 11, 2004 “Brief to the Secretary of Defense on
Treatment of Enemy Combatants Detained at Naval Station Guantanamo
Bay, Cuba, and Naval Consolidated Brig, Charleston,” attached hereto
as Exhibit G.
22. The conscience-shocking interrogation techniques and conditions
of confinement detailed below were not only intended to extract
information from Mr. Padilla, but also to punish him. Mr. Padilla was
detained long after U.S. Deputy Attorney General James Comey
announced in a press conference that the government had uncovered
most of what Mr. Padilla was thought to know and also well after
Deputy Secretary of Defense Wolfowitz had characterized the
activities in which Mr. Padilla allegedly had engaged as mere “loose
talk.”
23. Mr. Padilla was kept alone in a unit that, despite consisting of
10 to 20 cells, never accommodated more than three detainees and was
otherwise unoccupied for much of the period of Mr. Padilla’s detention.
24. Mr. Padilla’s cell was electronically monitored twenty-four hours
a day, eliminating the need for a guard to patrol his unit and
further increasing his isolation.
25. From June 9, 2002 until March 4, 2004, Mr. Padilla was
deliberately denied all contact with persons outside the military
brig, including his family and his lawyers. During this period, Mr.
Padilla's only human contact was with interrogators during
interrogation sessions, or with guards when they delivered his meals
through a slot in his cell door, or escorted him to the shower or the
concrete cage in which he was intermittently permitted to exercise.
26. For ten months after the President, relying on Defendant Yoo’s
legal opinion, ordered Mr. Padilla detained by the military, the
government denied Ms. Lebron any information about her son. After
almost a year of agonizing uncertainty, a Pentagon official finally
brought Ms. Lebron a very brief greeting card that Mr. Padilla had
been permitted to write to let her know that he was alive.
27. Beginning on March 4, 2004, while a habeas petition filed on his
behalf was pending in the U.S. Supreme Court, Mr. Padilla was finally
permitted contact with his attorneys. Even then, he was allowed only
sporadic contact with his attorneys and only under very restrictive
conditions. His isolation and other conditions of confinement
remained largely unchanged by the introduction of this limited access
to counsel.
28. In the nearly two year period between March 4, 2004, and January
5, 2006, Mr. Padilla was permitted to receive only two telephone
calls from his mother. Mr. Padilla was never permitted to initiate
telephone calls to his mother or to any other member of his family.
29. Mr. Padilla’s cell measured only 9 feet by 7 feet, and contained
only a bed, sink and toilet and a small window.
30. The windows in Mr. Padilla’s tiny cell were blacked out in order
to deprive Mr. Padilla of any sunlight or view of the outdoors or
even of the inside of the Brig, thereby deepening his sensory
deprivation and disorientation.
31. On rare occasions when Mr. Padilla was removed from his cell -
once to visit the dentist, for example - his eyes and ears were
covered to continue the sensory deprivation as illustrated in the
photographs entered as exhibits in Mr. Padilla’s criminal trial and
attached hereto as Exhibit H. There was no security or other
legitimate penological reason for these constraints, as Mr. Padilla
was a docile prisoner who did not violate prison disciplinary rules.
32. For the bulk of his captivity, Mr. Padilla was denied either a
clock or a watch and, deprived of any natural light, he could not
tell day from night, and did not know the day of the week or the
season, or the direction of Mecca.
33. To deepen his disorientation, Mr. Padilla was further denied
access to any form of information about the outside world, including
radio, television, and newspapers from the time of his imprisonment
without charge in the military brig until summer 2004, at which time
he was permitted very limited access to such materials.
34. When Mr. Padilla was first detained, he was permitted access to a
Qur'an. Shortly thereafter, however, Mr. Padilla’s access to
religious texts was revoked until March 2004, when Mr. Padilla’s
counsel provided him with a new copy of the Qur'an.
35. By depriving Mr. Padilla of any method of ascertaining the time
of day, the season of the year, or the direction of Mecca, and by
removing his copy of the Qur'an, Brig officials and/or other
government agents deliberately interfered with and substantially
burdened Mr. Padilla's ability to pray, keep holidays, study
religious texts, and otherwise observe the strictures of his faith.
36. Upon information and belief, the express request of a
representative of the International Committee of the Red Cross that
Mr. Padilla be given access to a time-piece with which he could
ascertain the time for prayer was denied by Brig officials and/or
other government agents.
37. There was no legitimate or compelling penological or other
governmental interest for the substantial burden on Mr. Padilla’s
exercise of his religion described above.
38. Despite the existence of a library on the Brig, other than the
Qur'an, which was briefly provided but quickly taken back, Mr.
Padilla was substantially denied reading material from the time of
his imprisonment without charge in the military brig until March 2004.
39. Brig Technical Director Sandy Seymour indicated to Mr. Padilla’s
habeas counsel that, based on his long experience in corrections, he
was concerned about the long-term effect on Mr. Padilla of the
extreme and prolonged isolation and sensory deprivation to which Mr.
Padilla was being subjected.
40. Brig Technical Director Seymour’s concerns about the potential
for harm from isolation and sensory deprivation are supported by a
substantial body of clinical literature and expert opinion which
holds that severe restriction of environmental and social stimulation
has a profoundly deleterious effect on mental functioning, and that
even a few days of solitary confinement predictably causes brain
patterns to become measurably abnormal.
41. One of the recorded effects of severe isolation and deprivation
of environmental stimuli is that individuals become hypersensitive
to, and tend to find intensely disturbing, any external stimuli to
which they are exposed.
42. Mr. Padilla was periodically subjected to absolute light or
darkness for periods in excess of twenty-four hours.
43. Until the tail end of his captivity, Mr. Padilla’s bed consisted
of a cold steel slab with no mattress, pillow, or blanket.
44. Mr. Padilla was regularly subjected to loud noises at all hours
of the night, caused by Brig personnel and/or other government agents
banging on the walls and bars of Mr. Padilla's cell or opening and
shutting the doors to the empty cells in the wing.
45. Mr. Padilla was also subjected to extreme and deliberate
variations in the temperature of his cell.
46. Mr. Padilla was denied sufficient exercise and recreation. Mr.
Padilla was permitted to exercise only intermittently and then only
in a concrete “cage” and often at night.
47. Mr. Padilla was denied the most basic comforts and subjected to
arbitrary changes in his conditions of confinement. He was forbidden
to shower for weeks at a time but would be subjected to forced
grooming at the hands of the interrogators. Similarly, at varying
points of the detention, he was given some comforts, such as a pillow
or sheet, only to have them taken away arbitrarily.
48. Mr. Padilla was kept shackled and manacled, or forced to sit or
stand in markedly uncomfortable and painful (or “stress”) positions
for hours at a time.
49. Mr. Padilla was forced to endure the introduction into his cell
of noxious fumes that caused pain and discomfort to his eyes and nose.
50. In addition to the conditions of extreme isolation and sensory
deprivation in which Mr. Padilla was confined, upon information and
belief, during lengthy interrogation sessions government
interrogators intentionally subjected Mr. Padilla to the following
forms of abuse, intended to cause Mr. Padilla severe mental pain or
suffering, overbear his will, and extract from him potentially self-
incriminating information:
a. Lying to Mr. Padilla about his location and the identity of his
interrogators;
b. Threatening to subject Mr. Padilla to physical abuse that would
result in severe physical pain and suffering, or death, including
threats to cut Mr. Padilla with a knife and pour alcohol into the
wounds;
c. Threatening to kill Mr. Padilla immediately;
d. Threatening to transfer Mr. Padilla to a location outside the
United States, to a foreign country or the U.S. Naval Base at
Guantanamo, where they told him he would be subjected to far worse
treatment, including severe physical and mental pain and suffering; and
e. Administering to Mr. Padilla, against his will, chemicals that Mr.
Padilla believed to be psychotropic drugs.
51. Each of these interrogation techniques and conditions of
confinement individually, and all of them in conjunction with each
other, were calculated to and actually did intensify Mr. Padilla’s
sense of profound isolation and disorientation, deprive Mr. Padilla
of sleep, and cause Mr. Padilla severe physical pain and profound
disruption of his senses and personality, all well beyond the
physical and mental discomfort that normally accompanies incarceration.
52. During the Relevant Period, Defendant Yoo played a central role
in providing the purported legal justifications for interrogation
policies directed at suspected “enemy combatants,” including the
justifications for many or all of the conditions and techniques to
which Mr. Padilla was subjected.
53. During the Relevant Period, Defendant Yoo prepared the Torture
Memos. He knew that the Torture Memos would be transmitted to senior
government officials, including officials at the White House and
Department of Defense, and would be relied upon by military and
intelligence officials in formulating and implementing programs of
confinement and interrogation for suspected “enemy combatants.”
54. By means of the Torture Memos, Defendant Yoo purported to provide
legal justifications for unprecedented and illegal detention and
interrogation techniques, including: program to detain suspected
“enemy combatants” summarily, indefinitely and without charge; to
deny detainees access to counsel, or review by an independent
tribunal; and to subject them to unlawful conditions of confinement
and interrogation techniques. The Torture Memos further advised
government officials who, in fact, authorized and/or carried out the
torture of “enemy combatant” detainees, that even if such techniques
were indeed illegal, they could nevertheless escape liability by
claiming the defenses of necessity or self-defense – putative
justifications that former Assistant Attorney General Jack Goldsmith
has described as “get-out-of-jail-free” cards.
55. The Torture Memos were used in the creation of Department of
Defense policies regarding the detention and interrogation of “enemy
combatant” detainees, including Mr. Padilla.
56. Declassified documents including a Department of Defense Action
Memo dated November 27, 2002 ("Action Memo"), attached hereto as
Exhibit I, and a Memorandum for the Commander, U.S. Southern Command
dated April 16, 2003 and signed by Secretary of Defense Rumsfeld,
attached hereto as Exhibit J, demonstrate that senior government
officials, upon information and belief, relying upon the Torture
Memos, approved for use on suspected “enemy combatants” the following
interrogation techniques, many of which were also applied to Mr.
Padilla during his detention at the Brig:
a. Stress positions for up to 4 hours
b. Use of isolation facilities for 30 days or more
c. Deprivation of light and auditory stimuli
d. Hooding
e. 20-hour interrogations
f. Removal of all comfort items, including religious items
g. Removal of clothing
h. Forced grooming
i. Using individual phobias to induce stress
j. Switching the detainee from hot meals to cold MREs ("Meal, Ready
to Eat")1
k. Altering the environment by adjusting the temperature
l. Altering the environment by introducing an unpleasant smell
m. Adjusting the sleeping times of the detainee, for example by
reversing sleep cycles from night to day
57. The threats listed in 50(a)-(d) are variations on a technique
described in the Action Memo, Ex. D, as “[t]he use of scenarios
designed to convince the detainee that death or severely painful
consequences are imminent for him or his family.”
58. The interrogation techniques listed in 56 are elaborated upon in
publicly-available, declassified government reports. They were
recommended for approval in the April 4, 2003 Working Group Report on
Detainee Interrogations in the Global War on Terrorism (“2003 Working
Group Report”), which is attached in relevant part hereto as Exhibit K.
59. The 2003 Working Group Report was created at the direction of
Secretary of Defense Rumsfeld. Upon information and belief, in
authoring the 2003 Report, the Working Group was advised by the
Department of Justice and expressly instructed to rely upon the
Torture Memos authored by Defendant Yoo. In fact, sections of the
March 6 draft of the Working Group Report pertaining to the
interpretation of the Torture Statute, 18 U.S.C. §§ 2340-2340A, and
the availability of the defenses of necessity and self-defense were
copied verbatim from the August 1, 2002 OLC Memo on Standards of
Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, created,
upon information and belief, by Defendant Yoo.
60. Upon information and belief, the interrogation techniques
formulated and approved by senior government officials including
Defendant Yoo were based on methods used to train U.S. special forces
to “Survive, Evade, Resist, and Escape,” otherwise known as “SERE”
methods. SERE methods were initially developed during the Cold War to
defend U.S. troops against torture
1An MRE is a self-contained operational ration pack usually heated by
a flameless ration heating device that is packed into each meal bag.
and interrogation methods that the Soviet Union’s intelligence
agency, the KGB, used on captured Americans. Upon information and
belief, U.S. intelligence and military officials used the SERE
methods for half a century only for defensive training purposes,
never as an offensive weapon against suspected enemy agents. To the
contrary, the United States regularly condemned those nations
employing such torture and interrogation methods.
61. Upon information and belief, professional interrogation experts
including Colonel Steve Kleinman, the former head of the air force’s
strategic interrogation program, and Dr. Michael Gelles, the navy’s
top forensic psychologist, were alarmed by the adoption of these
techniques for interrogation purposes because it is widely understood
by experts that these methods, which U.S. troops were being trained
to resist, were developed by enemy nations to brainwash U.S. forces
for propaganda purposes, not to extract accurate intelligence
information, and that the techniques can cause severe injury.
62. Upon information and belief, the attempts of these experts to
raise alarms about the ineffectiveness of such techniques for
obtaining accurate intelligence were thwarted or ignored by senior
government officials, including Defendant Yoo.
63. Upon information and belief, the interrogation techniques
originally approved for use on suspected “enemy combatants” by senior
defense and government officials, including Defendant Yoo: (a) were
expressly authorized for use on Mr. Padilla; or (b) were applied to
Mr. Padilla in reliance on official memoranda authored by Defendant
Yoo and approving harsh interrogation techniques, as well as a
deliberate unwritten understanding fostered by the promulgation of
memoranda including those authored by Defendant Yoo that senior
government officials wanted intelligence results fast and that use of
harsh techniques was acceptable for that purpose.
64. From June 9, 2002 until March 4, 2004, senior government
officials purposely and systematically deprived Mr. Padilla of all
access to legal counsel and all access to the courts.
65. Defendant Yoo and other senior government officials intentionally
denied Mr. Padilla access to counsel, inter alia, because, as
explained by Vice Admiral Lowell E. Jacoby in his January 9, 2003,
Declaration to the United States District Court for the Southern
District of New York (“Jacoby Declaration”), attached hereto as
Exhibit L, they believed that anything that could give Mr. Padilla
hope “that his ultimate release may be obtained through an
adversarial civil litigation process” would destroy the complete
psychological dependency on his interrogators they intended to create
in order to extract from Mr. Padilla potentially self-incriminating
information.
66. Mr. Padilla was allowed contact with his attorneys only after the
habeas corpus petition filed by his counsel reached the U.S. Supreme
Court, at which point the government argued that Mr. Padilla’s demand
for access to counsel was moot.
67. The government announced the change in policy to allow Mr.
Padilla limited access to counsel on February 11, 2004. However,
counsel was not allowed to meet with Mr. Padilla until March 4, 2004.
68. Even after March 4, 2004, Brig officials and other government
agents continued deliberately to interfere with Mr. Padilla’s
communications with counsel and to intimidate Mr. Padilla from
speaking freely with his attorneys.
69. Mr. Padilla was only permitted to meet his attorneys in a
confined room, with his ankles cuffed and locked onto a metal handle
on the floor.
70. Certain legal professionals employed by the government were
assigned to the so-called “Privilege Team.” This group reviewed all
communication that Mr. Padilla received from his attorneys prior to
his receiving them and further asserted the power to review all notes
taken by his attorneys.
71. Upon information and belief, some government agents also listened
to and recorded Mr. Padilla’s conversations with his attorneys.
72. Mr. Padilla’s counsel were forced to sign Access Procedures that
severely restricted their discussions with Mr. Padilla while he was
in the Brig. The Access Procedures stated that the “Privilege Team”
would terminate any discussions between counsel and Mr. Padilla that
involved “conveying information concerning the internal operations of
the Brig” or “information concerning intelligence sources and
methods.” Because of this, counsel were essentially barred from
discussing with Mr. Padilla how he had been treated during his months
of incommunicado interrogation, as well as the ongoing operations of
the Brig including the details of his conditions of confinement.
73. The Access Procedures also stated that they did not reflect any
determination or acknowledgment of an attorney-client relationship
between counsel and Mr. Padilla, leading counsel reasonably to fear
that Mr. Padilla’s communications with them were monitored and might
not be legally protected. In a Rider that they insisted be attached
to the Access Procedures, counsel objected to the Access Procedures
and stated that they felt themselves ethically precluded from
discussing any potentially privileged topic with Mr. Padilla while
the procedures were in place.
74. Upon information and belief, Brig officials and other government
agents interfered with Mr. Padilla’s access to counsel by telling Mr.
Padilla that his attorneys were not trustworthy and actually were
government officials.
75. Upon information and belief, Brig officials and other government
agents further interfered with Mr. Padilla's access to counsel by
threatening Mr. Padilla with unpleasant consequences if he revealed
the true conditions of confinement to his counsel. Mr. Padilla,
terrified of retaliation by the government, refused to discuss his
treatment with his counsel in any detail during the Relevant Period.
76. In addition to the direct interference with Mr. Padilla’s access
to counsel detailed above, Mr. Padilla’s access to counsel was
indirectly hampered by the abusive conditions of confinement and
interrogation imposed upon him, which rendered Mr. Padilla incapable
of communicating to his attorneys all of the information necessary to
effective legal representation of Mr. Padilla’s interests.
77. The denial of access to counsel and the courts, and detention
without due process of law for what the government asserted could be
forever, caused Mr. Padilla mental pain and suffering beyond that
inflicted by the isolation and sensory deprivation to which he was
subjected.
78. As a consequence of the interference with access to counsel
detailed above, at no point did Mr. Padilla’s counsel fully
understand the extent of the abusive interrogations and conditions of
confinement to which Mr. Padilla was being subjected. Furthermore,
upon questioning by Mr. Padilla’s counsel, government officials
within the Department of Defense chain of command, including Capt.
A.G. Kaufman of Joint Forces Command, Brig Technical Director Sandy
Seymour, and Assistant to the Solicitor General David P. Salmons gave
numerous assurances that Mr. Padilla was being held in humane
conditions.
79. Nonetheless, Mr. Padilla’s attorneys were concerned by what they
could ascertain of Mr. Padilla's conditions of confinement, in
particular, his severe isolation from other human beings and
deprivation of stimuli. Mr. Padilla’s counsel also noticed signs of
psychological distress in Mr. Padilla, including involuntary
twitching and self-inflicted scratch wounds.
80. On several occasions, Mr. Padilla’s counsel brought concerns
about Mr. Padilla’s health to the attention of officials in the chain
of command governing Mr. Padilla’s detention, including Capt. A.G.
Kaufman of Joint Forces Command, Brig Technical Director Sandy
Seymour, and Assistant to the Solicitor General David P. Salmons, who
assured them that these concerns would be passed throughout the chain
of command. Upon information and belief, the concerns about Mr.
Padilla’s health expressed by his counsel were in fact communicated
to other Brig personnel and senior government officials.
81. In addition to counsel’s communications regarding Mr. Padilla’s
well-being, brig personnel, including Brig Technical Director Sandy
Seymour, observed Mr. Padilla weeping in his cell on multiple occasions.
82. Mr. Padilla made repeated requests for access to medical care for
serious and potentially life-threatening ailments, including chest
pain and difficulty breathing, as well as for treatment of the
chronic, extreme pain caused by being forced to endure stress
positions. These requests were either denied or met with grossly
inadequate responses, upon information and belief, as part of the
systematic program of abuse designed and approved by senior
government officials, including Defendant Yoo, to break Mr. Padilla’s
will and extract from him self-incriminating information.
83. On May 11, 2004, Vice Admiral Church expressly noted in his
briefing to the Secretary of Defense and his staff that some
unauthorized interrogation techniques were being employed against
suspected “enemy combatant” detainees at the Brig. See Ex. G at 9.
Vice Admiral Church’s slides also noted that one enemy combatant
detainee on the Brig had had his Qu’ran, mattress, and pillow removed
as part of a JFCOM-approved interrogation plan, and that the severe
isolation experienced by detainees in the Brig could be legally
problematic.
84. Mr. Padilla was never given any explanation for the abusive
treatment and severe conditions of confinement to which he was
subjected. Upon information and belief, the measures described above
were not imposed on Mr. Padilla for prison disciplinary or other
legitimate prison administrative goals. Mr. Padilla was a model
prisoner who was never even accused of violating Brig rules; indeed,
he was described by Brig officials as being so passive as to be “like
a piece of furniture.”
85. The systematic program to punish Mr. Padilla, to subject him to
severe mental and physical pain, and to destroy his ordinary
emotional and cognitive functioning was a success and proximately
caused Mr. Padilla to suffer marked harm to his mental well-being.
86. In addition to the harm caused to Mr. Padilla by his detention
and interrogation, Mr. Padilla continues to suffer deprivation of
liberty, public stigmatization, serious ongoing psychological harm,
and other collateral effects from the unlawful “enemy combatant”
designation, including the threat that he will once again be
militarily detained in the Brig and subjected there to
unconstitutional conditions of confinement and unconstitutional
interrogations.
87. The threat of re-detention is not a figment of Mr. Padilla’s
imagination. On or about November 23, 2005 – shortly after the
criminal indictment against Mr. Padilla was made public – Deputy
Solicitor General Gregory Garre informed Mr. Padilla’s counsel,
Jonathan Freiman, that it was the government’s position that the
“enemy combatant” designation had not been rescinded and that the
government could therefore militarily redetain Mr. Padilla at any
time based on his alleged past acts.
88. The threat of redetention has also chilled Mr. Padilla’s exercise
of his right to counsel by preventing him from fully communicating
the details of his mistreatment.
89. Plaintiffs seek to vindicate their constitutional rights and
ensure that neither Mr. Padilla nor any other person is treated this
way in the future
90. Plaintiffs seek monetary and declaratory relief.
91. Plaintiffs have no administrative remedies or other effective
means of enforcing their rights other than seeking relief from the
Court.
PERSONAL PARTICIPATION OF DEFENDANT
92. As described herein, Defendant Yoo acted under color of law and
in violation of Plaintiffs’ clearly established constitutional,
statutory, and common law rights. The allegations of the preceding
paragraphs of this complaint are all incorporated by reference into
this section as if fully set forth herein.
93. During the Relevant Period, Defendant Yoo was Deputy Assistant
Attorney General in the Office of Legal Counsel of the Department of
Justice. As revealed by Jack Goldsmith, former Assistant Attorney
General for OLC, Defendant Yoo was a key member of a small, secretive
group of executive officials who exerted tremendous influence over
anti-terrorism policy and who were known as the “War Council.”
94. Upon information and belief, Defendant Yoo had substantial
influence over government policies regarding the detention and
interrogation of suspected “enemy combatants.” Goldsmith’s
predecessor, Assistant Attorney General Jay Bybee, “largely delegated
OLC’s war-on-terrorism responsibilities to Yoo,” as Goldsmith has
revealed.
95. Defendant Yoo, through the Torture Memos, personally provided
essential legal approval for the policy of militarily detaining and
interrogating without access to counsel, courts, or family, and
without due process of law, U.S. citizens suspected of being “enemy
combatants,” and that legal approval proximately and foreseeably
caused Mr. Padilla’s illegal detention and the other violations
alleged herein.
96. Upon information and belief, Defendant Yoo was personally
involved in formulating the recommendation to President George W.
Bush that Mr. Padilla be detained without charge as an “enemy
combatant.” The actions of Defendant Yoo proximately and foreseeably
caused Mr. Padilla to be seized from the civilian criminal system and
transferred to military detention.
97. Upon information and belief, Defendant Yoo personally
participated in and/or approved the decision militarily to detain Mr.
Padilla with the intention of subjecting Mr. Padilla to conditions of
confinement designed to coerce from him potentially self-
incriminating evidence, to shield the illegal detention and
interrogation from judicial review, and to deprive Mr. Padilla of due
process of law, proximately and foreseeably causing harm to Mr.
Padilla and Ms. Lebron.
98. Defendant Yoo authored the legal opinion recommending that Mr.
Padilla could be taken into custody as a military combatant.
Defendant Yoo himself has publicly asserted that Attorney General
Ashcroft relied on this opinion in recommending Mr. Padilla’s seizure
out of the civilian justice system and detention without charge in a
military prison.
99. Upon information and belief, Defendant Yoo also personally
participated in formulating and/or approving the program of
detention, interrogation, and conditions of confinement that
proximately and foreseeably caused the harms to Mr. Padilla and Ms.
Lebron alleged herein.
100. Upon information and belief, Defendant Yoo personally authored
legal opinions purporting to provide essential legal approval for the
use of extreme interrogation tactics against suspected “enemy
combatant” detainees and/or concluding that the executive branch had
nearly unlimited authority in the interrogation of suspected “enemy
combatant” detainees, opinions that proximately and foreseeably
harmed Plaintiffs.
101. Upon information and belief, Defendant Yoo’s legal opinions
served as the basis for the list of interrogation tactics authorized
by the Department of Defense for use on suspected “enemy combatant”
detainees, including Mr. Padilla. Department of Defense General
Counsel Haynes directed the 2003 Working Group on Detainee
Interrogations to consider as binding legal authority one of the
Torture Memos, upon information and belief authored by Defendant Yoo,
which authorized the use of such techniques.
102. Upon information and belief, upon the basis of the Torture Memo
prepared by Defendant Yoo, Department of Defense General Counsel
Haynes recommended that the Secretary of Defense approve methods of
interrogation including:
a. Stress positions for up to 4 hours
b. Use of isolation facilities for 30 days or more
c. Deprivation of light and auditory stimuli
d. Hooding
e. 20-hour interrogations
f. Removal of all comfort items, including religious items
g. Removal of clothing
h. Forced grooming
i. Using individual phobias to induce stress
103. Alternatively, upon information and belief, Defendant Yoo had
actual or constructive knowledge of the violations alleged herein and
failed to take steps to stop those violations despite a substantial
and foreseeable risk of harm to Mr. Padilla and Ms. Lebron. Defendant
Yoo’s deliberate indifference to the perpetration of these violations
proximately and foreseeably caused the harms to Plaintiffs alleged
herein.
104. Alternatively, upon information and belief, Defendant Yoo’s
formulation and/or approval of, or deliberate indifference to, the
use of harsh interrogation techniques for suspected “enemy
combatants” foreseeably and proximately caused lower-ranking
government officials to subject Mr. Padilla to the abuses detailed
herein by creating a climate in which lower-ranking government agents
felt pressure to extract information quickly and understood that use
of harsh interrogation techniques was acceptable to top-level
officials for that purpose.
105. The Torture Memos drafted by Defendant Yoo were, as former
Assistant Attorney General and the subsequent head of OLC Jack
Goldsmith put it in his book The Terror Presidency, “deeply flawed:
sloppily reasoned, overbroad, and incautious in asserting
extraordinary constitutional authorities on behalf of the President.”
They purported to issue a provide essential legal approval for
conduct that reasonable government officials – and especially
government lawyers – knew or should have known violated clearly
established constitutional and statutory rights.
CLAIMS
106. Mr. Padilla incorporates by reference each and every allegation
contained in the preceding paragraphs as if set forth fully herein.
107. By the allegations incorporated above, Defendant Yoo proximately
and foreseeably injured Mr. Padilla by violating numerous clearly
established constitutional and statutory rights including, but not
limited to, the following:
a. Denial of Access to Counsel. Acting under color of law and his
authority as a federal officer, Defendant Yoo violated Mr. Padilla’s
right of access to legal counsel protected by the First, Fifth, and
Sixth Amendments to the U.S. Constitution.
b. Denial of Access to Court. Acting under color of law and his
authority as a federal officer, Defendant Yoo violated Mr. Padilla’s
right of access to court protected by the First and Fifth Amendments
to the U.S. Constitution, Article III of the U.S. Constitution, and
the Habeas Suspension Clause of the U.S. Constitution.
c. Unconstitutional Conditions of Confinement. Acting under color of
law and his authority as a federal officer, Defendant Yoo subjected
Mr. Padilla to illegal conditions of confinement and treatment that
shocks the conscience in violation of Mr. Padilla’s Fifth Amendment
rights to procedural and substantive due process, as well as his
Eighth Amendment right to be free of cruel and unusual punishment,
including torture, outrages on personal dignity, and humiliating and
degrading treatment.
d. Unconstitutional Interrogations. Acting under color of law and his
authority as a federal officer, Defendant Yoo subjected Mr. Padilla
to coercive and involuntary illegal interrogations, both directly and
through unlawful conditions of confinement designed to aid the
interrogation, all in violation of Mr. Padilla’s Fifth Amendment
rights to procedural due process, freedom from treatment that shocks
the conscience, and freedom from self-incrimination, as well as his
Eighth Amendment right to be free from cruel and unusual punishment,
including torture, outrages on personal dignity, and humiliating and
degrading treatment.
e. Denial of Freedom of Religion. Acting under color of law and his
authority as a federal officer, Defendant Yoo violated Mr. Padilla’s
right to the free exercise of religion guaranteed under the First
Amendment to the U.S. Constitution, as well as the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb.
f. Denial of the Right to Information. Acting under color of law and
his authority as federal officer, Defendant Yoo violated Mr.
Padilla’s right to information guaranteed under the First Amendment
to the U.S. Constitution.
g. Denial of the Right to Association. Acting under color of law and
his authority as a federal officer, Defendant Yoo violated Mr.
Padilla’s right to association with family and others guaranteed
under the First Amendment to the U.S. Constitution.
h. Unconstitutional Military Detention. Acting under color of law and
his authority as a federal officer, Defendant Yoo violated Mr.
Padilla’s right to be free from military detention guaranteed by the
Fourth Amendment to the U.S. Constitution, the Due Process Clause of
the Fifth Amendment to the U.S. Constitution, the Habeas Suspension
and Treason Clauses of the U.S. Constitution, and Article III of the
U.S. Constitution.
i. Denial of Due Process. Acting under color of law and his authority
as a federal officer, Defendant Yoo violated Mr. Padilla’s Fifth
Amendment right not to be detained or subjected to the collateral
effects of designation as an “enemy combatant” without due process of
law.
108. By the allegations incorporated above, Defendant Yoo, acting
under color of law and his authority as a federal officer, also
proximately and foreseeably injured Ms. Lebron by unlawfully denying
her virtually all contact with her son in violation of her clearly
established rights to association and communication under the First
and Fifth Amendments of the U.S. Constitution.
PRAYER FOR RELIEF
109. Plaintiffs therefore respectfully request that the Court enter a
judgment for all relief to which they are legally entitled under the
facts of this case, including but not limited to the following:
a. A judgment declaring that the acts alleged herein are unlawful and
violate the Constitution and laws of the United States;
b. Damages in the amount of one dollar;
c. Attorneys’ fees and costs; and
d. All other appropriate relief as the Court may determine to be just
and proper.
Respectfully submitted,
JONATHAN M. FREIMAN (pro hac vice pending)
HOPE R. METCALF (pro hac vice pending)
National Litigation Project
Lowenstein International Human Rights Clinic
Yale Law School
P.O. Box 208215
New Haven, CT 06520-8215
NATALIE L. BRIDGEMAN,
Law Offices of Natalie L. Bridgeman, Esq.
131 Steuart Street, Suite 400
San Francisco, CA 94105
Attorneys for Plaintiffs
Dated: January 4, 2008