Legislating by Lawyers

UPDATE: below

Last August, a Federal jury in Miami found José Padilla guilty of conspiracy to murder, kidnap and maim overseas, conspiracy to provide material support for terrorists and providing material support to terrorists. On Tuesday, Padilla was sentenced to 30 years-to-life in prison. Prior to his transfer to the criminal courts, Padilla had been detained in South Carolina as an enemy combatant suspected of plotting with Al Qaeda to set off a "dirty bomb" on U.S. soil.

Padilla's incarceration hasn't prevented him from making new friends, as apparent in his slanted Wikipedia bio and its one-sided references and external links. Several such supporters seem to be lawyers: last year, Padilla (and his mother) sued "a host of government defendants up and down the chain of command, including Rumsfeld, Ashcroft, naval officers in charge of his detention in South Carolina," under the Tort Claims Act, and, on January 4th, Padilla (joined by mom again) filed a complaint in Federal District Court against former Deputy Assistant Attorney General John Yoo. Yoo, a Yale Law grad who clerked for Clarence Thomas, left the Department of Justice in 2003 and is now a Law Professor at Berkeley.

The complaint condemns Yoo's advice offered in connection with his official duties in two areas:

1. A legal opinion for Attorney General Ashcroft, relied upon by President Bush in designating Padilla an "enemy combatant" (paragraph 17); and



2. Various views, memos and "understandings" purportedly authored, reviewed or promoted by Yoo -- including the so-called Torture memos -- that assertedly led to Padilla being mistreated while detained in South Carolina (paragraphs 20, 63, 95 and 104)

The requested relief downplays money damages (it asks only for a token $1), instead seeking a "judgment declaring that the acts alleged herein are unlawful and violate the Constitution and laws of the United States" (Paragraph 109).

David Luban calls the complaint "straightforward". It's anything but.

First, the suit claims that Yoo's advice was legally unconstitutional. But Padilla wasn't harmed by the advice. The decision to detain Padilla was made by the President, not Yoo. Were Padilla mistreated during that time, John Yoo wasn't in South Carolina and didn't do it. Thus the allegations cannot establish "causation" or standing.

Second, Yoo acted as an attorney advising his client--the United States. That's what lawyers do. Assume, as Padilla asserts, that Yoo's advice was legally wrong. Fine--but lawyers aren't normally liable for the actions of their clients, as even liberal law prof Jonathan Turley recognizes: "Lawyers give advice — perhaps bad advice — but legal responsibility rests with those who order the unconstitutional or criminal practices." And turning the debate about detention and interrogation into a judicial inquiry about legal memos makes no sense.

Third, it's a transparent end-run. Normally, the government can't be sued as if it were a private actor--though there are some important exceptions. Anti-Bush lawyers know that--and so increasingly target private parties such as government contractors, no matter how innocent. But the Yoo suit is a new and potentially far-reaching tactic:

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.

Ultimately, the Government is likely to back Yoo (at taxpayer expense) and the immunity claim should prevail. But -- given the slow pace of American law -- how long will that take?

Yoo already is represented by a lawyer. And he rightly sees that "'Lawfare' has become another dimension of warfare":

Padilla and his lawyers want them, from the president down to lowest private, to worry about being sued when they make their decisions. Officials will worry about all of the attorneys' fees they will rack up to defend themselves from groundless lawsuits.

My situation is better than most, since I am a lawyer with many lawyer friends (that is not the oxymoron it seems). I can fend for myself; fine attorneys have volunteered to represent me, and the government may defend me. But what about the soldiers, agents and officers who have to respond to the next 9/11 or foreign threat? They will have to worry about personal liability, hiring lawyers.

Conclusion: How America fights global terror -- including conditions of detention and methods of interrogations -- is a crucial public policy issue. It's unquestionably a legitimate topic for debate--which is why we have elections.

Addressing the now-halted program of warrantless wiretapping, as Maxed-Out Mama observed, "this is a political and not a legal controversy." Agreed. Vote Democratic if you think Padilla was wronged--but call off the lawyers.

MORE:

John Yoo in the January 19th Wall Street Journal:

Padilla and his lawyers are trying to use our own courts to attack the government officials who stopped him. . .

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. . .

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. . .

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.

MORE & MORE:

Cassandra at Villainous Company:

[T]here are good reasons for the qualified immunity extended to governmental employees. One very good reason is that this immunity helps shield them from frivolous lawsuits used as a means of blackmail or political pressure. But John Yoo brings up an even more compelling reason: sometimes doing a job well requires taking risks, advocating (or simply raising) new and unpopular positions, challenging the conventional wisdom, ruffling feathers. In an open and litigious society, do we really want the Department of Defense to tailor national security policy to the whims of lobbyists and special interest groups?

(via reader Doug J.)