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How To Become a Civil Libertarian

A Commentary by Debra J. Saunders

Friday, June 19, 2009

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 Obama lawyers?

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 lives.

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 interrogations.

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 training camp.

Fortunately, he got caught. So now he gets to play the role of civil libertarian.

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