There are no legal grounds for prosecuting Bush administration
lawyers who supported the use of enhanced interrogation techniques to thwart
planned terrorist attacks, so civil libertarians have the tort system to try
to ruin Bush lawyers.
They may succeed.
Last week, U.S. District Judge Jeffrey White of San Francisco
backed a complaint filed by convicted terrorist Jose Padilla and his mother
against former White House Office of Legal Counsel John Yoo for writing
memos that allegedly led to Padilla's illegal imprisonment and treatment
during the three-plus years that Padilla was jailed as an enemy combatant.
You are part of the lawsuit, too.
A Department of Justice lawyer is representing Yoo. Should
Padilla prevail, the federal government could end up paying the damages
the suit asks for a mere $1 now, but that could change and worse, legal
fees. If Padilla loses, then it's not as if his lifestyle in federal
prison where he is serving a 17-year sentence will change.
But there's another price. This sort of lawsuit could have a
chilling effect on government lawyers. And not just with Republican
administrations. The United States is at war in Iraq and Afghanistan. If
Padilla can ruin Yoo, then what is to keep future detainees from going after
It won't take Obama lawyers long to realize that the safest
thing for them to advise the administration would be to not change anything.
Harvard law professor Detlev Vagts a harsh critic of the Yoo
memos told me that lawyers do not enjoy unfettered immunity, but: "There
are problems about whether you can say that Yoo's memo had any causative
connection with the way Padilla was treated."
While Judge White wrote that, at this stage of litigation, the
court must accept Padilla's allegations of mistreatment being detained
illegally, confined in painful stress positions, and threatened with
death "as true." But none of the above has been proved in a court of law.
John Eastman, law school dean at Chapman University in Orange
County, where Yoo has taught for the past year, is appalled. If Padilla
wins, he fears that "everybody in prison can sue the lawyers who gave advice
to the sheriff for making the arrest."
Most important, Eastman said, "The notion that someone is going
to be held civilly liable for giving legal advice that other people didn't
like is preposterous."
While Yoo doesn't face possible jail time, if this case goes to
court, he will have to devote himself full-time to defending himself and
if he has to shoulder his legal costs, he risks financial ruin.
"A government official who acts in a gray area is immune from
suit," Padilla's attorney Jonathan Freiman responded. "It's only when an
official violates a clearly established law that he has to answer for what
he's done. And if he's about to violate a clear law, he 'should be made to
hesitate.' Those are the Supreme Court's words, not mine."
The rub: Lawyers always say that such lawsuits are narrow, then
over the years, others push to expand what was once a tiny tort. The law
applies in unintended ways as the stakes escalate and partisans use the
courts for payback. After a while, smart lawyers on both sides of the aisle
will be more timid about everything. It will be change you can't believe in.
The only sure outcome? Taxpayers get stuck with the bill.
And for what? So that critics can ruin a man who was trying to
save American lives, while ignoring the crimes of a man who wanted to take
It's true, the feds failed to prosecute Padilla for plotting
with al-Qaida to detonate a "dirty bomb" in the United States because much
of the evidence against him was obtained through inadmissible harsh
Still, the career-criminal-turned-would-be jihadist was
convicted of conspiracy to murder, kidnap and maim people overseas.
Prosecutors produced a form he filled out in 2000 when he attended al-Qaida
Fortunately, he got caught. So now he gets to play the role of