Hear about Jose Padilla's lawsuit?

[Rick Lee]

It's a WSJ opinion piece, but a good read.


Terrorist Tort Travesty
By JOHN YOO
January 19, 2008; Page A13

War is a continuation of politics by other means, the German strategist Carl von Clausewitz famously observed in his 19th-century treatise, "On War." Clausewitz surely could never have imagined that politics, pursued through our own courts, would be the continuation of war.

Last week, I (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.

The prospect of having to waste large sums of money on lawyers will deter talented people from entering public service, leading to more mediocrity in our bureaucracies. It will also lead to a risk-averse government that doesn't innovate or think creatively. Government by lawsuit is no way to run, or win, a war.

Mr. Yoo is a professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. He is the author of "War By Other Means" (Grove/Atlantic 2006).

[stevepaa]

agree with most of what he says except for this piece of BS

"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."

[Jim Bremner]

why is he still consuming 02?

[equality72521]

Originally Posted by stevepaa

agree with most of what he says except for this piece of BS

"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."

+1 This seems to me more about lawyers finding loopholes to further pad their own pockets rather than a "liberal plot" to give AQ rights to sue.

[RoninLB]

Author didn't mention the ACLU support of Padilla in the Supreme Court.

[911pcars]

Rick,
To understand where this gentleman is coming from, this is the entry for John Woo according to Wiki, and w/o comment:

"John Choon Yoo (born 1967) is an American professor of Law at the Boalt Hall School of Law, University of California, Berkeley, known for his work from 2001 to 2003 in the United States Justice Department's Office of Legal Counsel, [1] assisting the Attorney General in his function as legal advisor to President Bush and all the executive branch agencies.

He contributed to the PATRIOT Act and wrote memos in which he advocated the possible legality of torture and that enemy combatants could be denied protection under the Geneva Conventions.[2] Yoo has also worked as a visiting scholar at the neoconservative think tank American Enterprise Institute since 2003."

Interested parties can read the rest.

Sherwood

[Rick Lee]

Originally Posted by 911pcars

Rick,
To understand where this gentleman is coming from, this is the entry for John Woo according to Wiki, and w/o comment:

"John Choon Yoo (born 1967) is an American professor of Law at the Boalt Hall School of Law, University of California, Berkeley, known for his work from 2001 to 2003 in the United States Justice Department's Office of Legal Counsel, [1] assisting the Attorney General in his function as legal advisor to President Bush and all the executive branch agencies.

He contributed to the PATRIOT Act and wrote memos in which he advocated the possible legality of torture and that enemy combatants could be denied protection under the Geneva Conventions.[2] Yoo has also worked as a visiting scholar at the neoconservative think tank American Enterprise Institute since 2003."

Interested parties can read the rest.

Sherwood

That's completely irrelevant. He probably tortured animals as a kid and looked at gay porn too. Doesn't matter. Terrorists should not be able to use our courts to sue gov't. officials acting in their official capacities to catch terrorists. God forbid we ever catch bin Laden and the lawyers will be lining up to represent him, not just for his trial, but then to sue anyone who did anything to catch him.

[MRM]

He is the primary author of the two papers now known as the torture memos where he offered a fractured legal justification for torturing detainees. Most legal authoritees, including past and present Bush DOJ members members agree that his analysis was weak, at best. He should have disclosed his interest in the issue in his article so the reader could evaluate his opinion in light of the author's experience.

Being named personally in a suit is no big deal to a government official. The government defends and indemnifies them unless there is a showing of deliberate lawbreaking. I've been sued by a guy I got convicted. The case was dismissed and I thought nothing more of it. I can't imagine that Donald Rumsfeld is any more worried about the claims against him.
US citizens have the right to redress their grievances. IMO Padilla should be treated like a common criminal like the British treated the IRA and executed after a fair trial as the criminal he is. His case probably has no merit, and if so, the courts will sort it out at no harm to Donald Rumsfeld. But to suggest that an entire class of suits against the government should be barred just so Jose Padilla's suit doesn't get heard does violence to the Constitution. Our form of government is strong enough to survive a frivolous suit by Jose Padilla. It is not strong enough to survive limits on the Constitution justified by the blanket argument that do do otherwise undermines the war against terrorism.

[Shaun @ Tru6]

Originally Posted by MRM

He is the primary author of the two papers now known as the torture memos where he offered a fractured legal justification for torturing detainees. Most legal authoritees, including past and present Bush DOJ members members agree that his analysis was weak, at best. He should have disclosed his interest in the issue in his article so the reader could evaluate his opinion in light of the author's experience.

Being named personally in a suit is no big deal to a government official. The government defends and indemnifies them unless there is a showing of deliberate lawbreaking. I've been sued by a guy I got convicted. The case was dismissed and I thought nothing more of it. I can't imagine that Donald Rumsfeld is any more worried about the claims against him.
US citizens have the right to redress their grievances. IMO Padilla should be treated like a common criminal like the British treated the IRA and executed after a fair trial as the criminal he is. His case probably has no merit, and if so, the courts will sort it out at no harm to Donald Rumsfeld. But to suggest that an entire class of suits against the government should be barred just so Jose Padilla's suit doesn't get heard does violence to the Constitution. Our form of government is strong enough to survive a frivolous suit by Jose Padilla. It is not strong enough to survive limits on the Constitution justified by the blanket argument that do do otherwise undermines the war against terrorism.

Beautifully written, one of the reasons I tune in to OT.

[911pcars]

Originally Posted by Rick Lee

That's completely irrelevant. He probably tortured animals as a kid and looked at gay porn too. Doesn't matter. Terrorists should not be able to use our courts to sue gov't. officials acting in their official capacities to catch terrorists. God forbid we ever catch bin Laden and the lawyers will be lining up to represent him, not just for his trial, but then to sue anyone who did anything to catch him.

God forbid.

Same thing. All you're saying is that you agree with the govt's position it's justified to torture, even a US citizen, before they're convicted of charges.

Summary described here in the Padilla vs Yoo case noting that Padilla's eventual conviction is immaterial for this discussion.
http://writ.corporate.findlaw.com/cassel/20080114.html

Sherwood

[Rick Lee]

Originally Posted by 911pcars

God forbid.

Same thing. All you're saying is that you agree with the govt's position it's justified to torture, even a US citizen, before they're convicted of charges.

Summary described here in the Padilla vs Yoo case noting that Padilla's eventual conviction is immaterial for this discussion.
http://writ.corporate.findlaw.com/cassel/20080114.html

Sherwood

I didn't say that at all and whether I agree with the government's position is irrelevant. I guess I should have written more about Yoo when I posted his column. I know who he is and have read about the case plenty before.

[911pcars]

Originally Posted by Rick Lee

I didn't say that at all and whether I agree with the government's position is irrelevant. I guess I should have written more about Yoo when I posted his column. I know who he is and have read about the case plenty before.

Rick,
You said it was a good read. Since you posted it, I assumed you agreed with this guy. I jumped to conclusions.

Sherwood

[Shaun @ Tru6]

Originally Posted by 911pcars

Rick,
You said it was a good read. Since you posted it, I assumed you agreed with this guy. I jumped to conclusions.

Sherwood

Safe to say Rick takes an interesting position on torture.

Originally Posted by Rick Lee

Your loaded question notwithstanding, I would, at the very least, not publicly state that anything is ever off the table when it comes to dealing with terrorists. But since you think getting tough makes us "just like our enemies", I'll play along.

If it were up to me, I'd torture the hell out of them, round up their families and torture them too in front of them. Islamist nuts bent on suicide may not value their own lives, but they've never had their familes have to pay for their crimes. I'd change that. I'd make it well known to the world that anyone who commits a terrorist act against the U.S. had better be willing to suffer greatly and make their families suffer the same fate. And I'd be sure we actually did it too, not give them "religiously correct" meals, prayer rugs, medical care, Korans, etc. They'd be smeared in pig fat and set afire AFTER we were done with them. But then.....I'm probably a little more extreme than most Americans. I don't lose sleep at night when the UN or Amnesty Int'l. doesn't like us. I don't worry what others think of the U.S. I think others should worry about what we think of them.

[Rick Lee]

Yes, I'm bit on the hardcore side when it comes to torture.

[911pcars]

Originally Posted by Rick Lee

Yes, I'm bit on the hardcore side when it comes to torture.

Rick,
But, what if the arrested are merely suspects? What if someone, perhaps anonimously, accused you of being a terrorist sympathizer (whatever the current definition might be) or merely a discontent and the police arrested you and whisked you away to some interrogation center in Pakistan for 2.5 years? You must have a high threshold for pain, patience and understanding for the American way.

Sherwood

[Rick Lee]

Originally Posted by 911pcars

Rick,
But, what if the arrested are merely suspects? What if someone, perhaps anonimously, accused you of being a terrorist sympathizer (whatever the current definition might be) or merely a discontent and the police arrested you and whisked you away to some interrogation center in Pakistan for 2.5 years? You must have a high threshold for pain, patience and understanding for the American way.

Sherwood

Again, totally irrelevant. Padilla wasn't tortured and he wasn't even sent to Gitmo. Sure, his trial wasn't that speedy, but that's not why he's suing. He has been convicted and he should be locked up and the key thrown away. Glad we caught this terrorist before he killed lots of feel-guilty, handwringing ACLU-types.

[RoninLB]

Improper water-boarding by the Feds etc is a far left issue attack policy. There is no more war, it's all a judge's concern.

Far left policy mass media brain washing is NY Times attack policy.

Far left judicial attacks is ACLU policy.



good article btw..................

[911pcars]

is there proper water boarding under fed. policy? Why no more war? Did someone surrender lately or was the declaration of war, or lack thereof, a technicality of torture policy?

Rejecting torture isn't solely a position of the "far left." Conversely, is torture a position embraced by the far right?

This is very enlightening, not that anyone here is the spokesperson for any large group.

[Shaun @ Tru6]

the irony is incredible. Right wing nutballs want to take our country and make it a model example of Cold War Era Chinese/Soviet Communism, the same ideology they so proudly claim to have defeated.

The Right today has such a weak, downcast, pessimistic view of America today. They feel the need to write marriage into the Constitution to save "the family." They don't trust you to create your own family; they know better. They want to torture anyone and everyone, thinking they'll save thousands of lives in the last 10 minutes of the show and preserve the American Way of Life(TM). We are hated for our Freedom they say; they know better.

Only they can save us from ourselves.

[MRM]

The ultimate irony is that the torture memos were necessary because the things it justified were officially documented as torture by the US government in during the cold war when it was being done by the Soviets. True story. Google it. You'll find the government documents defining torture online - right down to the standing position for hours that Donald Rumsfeld thought so amusing since he regularly stood for 8 hours a day when he was Sec Def.

Think about it: if it was torture when the Soviets were doing it to downed U2 pilots, contract agents caught on the wrong side of the wall, and political dissedents, is it still torture now? We hung Japanese war criminals for waterboarding. Again, true story. Do a Google search. Do you want our servicement subject to the same treatment that we do to detainees? If not, on what basis do we object? And since it is well documented that no good intelligence comes from torture, what purposes are we putting our servicemen at risk for?

As I said, think about it.