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.

Read More...

Summary only...

Do We Treat Terroroism As A Crime or an Act of War

Whether terrorism is a crime or an act of war is much more than an academic question. It has huge reprucussions for how we are able to address terrorism at home and abroad - as well as implications for future military actions that we may undertake. There is no question that Islamists, aided and abetted by the far left of our society, want to see the war on terror treated as a law enforcement effort.

And there is a civil component to all of this. While the ability to sue an individual for damages does not, by definition, carry with it the threat of incarceration, it nonetheless holds the potential to drastically change how we operate in this county. That is what the Flying Imams law suit is all about. It is what the Nancy Pelosi sponsored End Racial Profiling Act is about. And now, it is what Jose Padilla's recent lawsuit is about. As John Yoo explains today in the WSJ:

. . . Last week, I ([John Yoo]a former Bush administration official) was sued by José Padilla -- a 37-year-old al Qaeda operative convicted last summer of setting up a terrorist cell in Miami. Padilla wants a declaration that his detention by the U.S. government was unconstitutional, $1 in damages, and all of the fees charged by his own attorneys.

The lawsuit by Padilla and his Yale Law School lawyers is an effort to open another front against U.S. anti-terrorism policies. If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11.

On Thursday, a federal judge moved closer to sentencing Padilla to life in prison. After being recruited by al Qaeda agents in the late 1990s, Padilla left for Egypt in 1998 and reached terrorist training camps in Afghanistan in 2000. American officials stopped him at Chicago O'Hare airport in 2002, based on intelligence gained from captured al Qaeda leaders that he was plotting a dirty bomb attack.

President Bush declared Padilla an enemy combatant and ordered him sent to a naval brig in South Carolina. After a federal appeals court rejected Padilla's plea for release, the government transferred him to Miami for trial for al Qaeda conspiracies unrelated to the dirty bomb plot. Federal prosecutors described Padilla as "a trained al-Qaeda killer," and a jury convicted him of conspiring to commit murder, kidnapping and maiming, and of providing material support to terrorists.

Now Padilla and his lawyers are trying to use our own courts to attack the government officials who stopped him. They claim that the government cannot detain Padilla as an enemy combatant, but instead can only hold and try him as a criminal. Padilla alleges that he was abused in military custody -- based primarily on his claim that he was held in isolation and not allowed to meet with lawyers.

But enemy prisoners in wartime never before received the right to counsel or a civilian trial because, as the Supreme Court observed in 2004, the purpose of detention is not to punish, but to prevent the enemy from returning to the fight.

Under Padilla's theory, the U.S. is not at war, so any citizen killed or captured by the CIA or the military can sue. In November 2002, according to press reports, a Predator drone killed two al Qaeda leaders driving in the Yemen desert. One was an American, Kamal Derwish, who was suspected of leading a terrorist cell near Buffalo. If Padilla's lawsuit were to prevail, Derwish's survivors could sue everyone up the chain of command -- from the agent who pressed the button, personally -- for damages.

Padilla's complaints mirror the left's campaign against the war. To them, the 9/11 attacks did not start a war, but instead were simply a catastrophe, like a crime or even a natural disaster. They would limit the U.S. response only to criminal law enforcement managed by courts, not the military. Every terrorist captured away from the Afghanistan battlefield would have the right to counsel, Miranda warnings, and a criminal trial that could force the government to reveal its vital intelligence secrets.

America used this approach in the 1990s with al Qaeda. It did not work. Both the executive and legislative branches rejected this failed strategy. In the first week after 9/11, Congress passed a law authorizing the use of military force against any person, group or nation connected to the attacks, and recognized the President's constitutional authority "to deter and prevent acts of international terrorism against the United States."

In the spring of 2002, I was a Justice Department lawyer asked about the legality of Padilla's detention. There is ample constitutional precedent to support the detention of a suspected al Qaeda agent, even an American citizen, who plans to carry out terrorist attacks on our soil. During World War II, eight Nazi saboteurs secretly landed in New York to attack factories and plants. Two of them were American citizens.

After their capture, FDR sent them to military detention, where they were tried and most of them executed. In Ex Parte Quirin, the Supreme Court upheld the detention and trial by military authorities of American citizens who "associate" with "the military arm of the enemy" and "enter this country bent on hostile acts." If FDR were president today, Padilla might have fared far worse than he has.

None of that matters to the anti-war left. They failed to beat President Bush in the 2004 elections. Their efforts in Congress to repeal the administration's policies have gone nowhere. They lost their court challenges to Padilla's detention. The American public did not buy their argument that the struggle against al Qaeda is not really a war.

So instead they have turned to the tort system to harass those who served their government in wartime. I am not the only target. The war's critics have sued personally Donald Rumsfeld, John Ashcroft, Robert Gates, Paul Wolfowitz and other top government officials for their decisions in the war on terrorism. Other lawsuits have resorted to the courts to attack the telecommunications companies that helped the government intercept suspected terrorist calls.

It is easy to understand why CIA agents, who are working on the front lines to protect the nation from attack, are so concerned about their legal liability that they have taken out insurance against lawsuits.

Worrying about personal liability will distort the thinking of federal officials, who should be focusing on the costs and benefits of their decisions to the nation as a whole, not to their own pockets. Even in the wake of Watergate, the Supreme Court recognized that government decisions should not be governed by the tort bar.

In a case about warrantless national security wiretaps ordered by Nixon's attorney general, John Mitchell, the court declared that executive branch officials should benefit from qualified immunity. Officials cannot be sued personally unless they had intentionally violated someone's clearly established constitutional rights.

The Padilla case shows that qualified immunity is not enough. Even though Supreme Court precedent clearly permitted Padilla's detention, he and his academic supporters can still file harassing lawsuits that promise high attorneys' fees. The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box. . .

Read the article here.

Read More...

Summary only...