Of Terrorists, Torts, & the Far Left

I posted below on the tort case brought by Yale Law School on behalf of convicted terrorist Jose Padilla against former Justice Department member John Yoo. And as I wrote, this case is a backdoor attempt to bypass the executive and legislative branches in order to establish as law that terrorists are criminals and not enemy combatants. This is no mere academic argument. It is a case with very significant ramifications for our national security. And it is another attempt by the far left to do as they have done over the past half century on countless issues, to use our court system to get what they cannot get at the ballot box or in the legislature. Today, the WSJ editorial board weighs in:

. . . Mr. Yoo is the former deputy assistant attorney general who wrote memos laying out some of the legal parameters in the war on terror. Those memos most famously pertained to interrogation techniques, some of which were used against such enemy combatants as Padilla. Mr. Yoo long ago returned to Berkeley, and we are happy to say he sometimes writes for us.

Now, years later, Mr. Yoo is being harassed by a lawsuit claiming he is personally liable for writing those memos as a midlevel government official. "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," the complaint asserts.

But Padilla's rights weren't violated, and certainly not by Mr. Yoo, whose legal arguments at the time were accepted by his superiors, including Attorney General John Ashcroft. The decision to hold Padilla as an enemy combatant was made by President Bush, and defended in court by executive branch lawyers. They won that case in the most senior court in which it was heard, in an opinion written by then-Judge Michael Luttig of the Fourth Circuit. The Bush Administration later transferred Padilla to be tried in the Miami court, and the Supreme Court declined to hear an appeal. Padilla got his day in court -- on both Constitutional and criminal grounds -- and lost.

What we really have here is less a tort claim than a political stunt intended to intimidate government officials. Nothing in the claim will change Padilla's future, and the suit asks for only $1 in damages, plus legal fees. Instead, the suit seeks "a judgment declaring that the acts alleged herein are unlawful and violate the Constitution and laws of the United States." In short, the Yale attorneys are using Padilla as a legal prop in one more attempt to find a judge willing to declare that the Bush Administration's antiterror policies are illegal. And if it can harass Mr. Yoo with bad publicity and legal costs along the way, so much the better.

This is nasty business and would have damaging consequences if it worked. Government officials have broad legal immunity (save for criminal acts) precisely so they can make decisions without worrying about personal liability. If political appointees can be sued years later for advice that was accepted by their superiors, we will soon have a government run not by elected officials but by tort lawyers and judges.

The antiwar left has failed to overturn U.S. policies in Congress, or by directly challenging the government in court. So its latest tactic is suing third parties, such as the telephone companies that cooperated on al Qaeda wiretaps after 9/11. And now it is suing former government officials, hoping to punish them and deter future appointees from offering any advice that the left dislikes.

Which brings us back to Yale. The real litigant here is the National Litigation Project at the Lowenstein International Human Rights Clinic at Yale Law School. That sounds august, but this is really a leftwing bucket shop using Yale's sponsorship to achieve antiwar policy goals via lawsuit. We trust the dean of Yale Law, Harold Koh, is proud of suing an alumnus on behalf of a terrorist, and that Yale's other alumni know how their donations are being used.

Read the entire article. This suit should be dismissed and the Yale lawyers fined for bringing a frivolous law suit.