As the nation's celebrates its 233rd birthday, its legal system continues its assault on Americans who while serving in government acted in good faith to defend America after the worst attack ever launched on US soil. CIA agents and Bush-era legal advisers are defending themselves against a spate of lawsuits filed over decisions made and advice given that led to actions taken in good faith to protect the American homeland.
A federal judge is allowing convicted terrorist conspirator Jose Padilla to sue a top Bush 43 lawyer whose legal opinions provided the legal rational for holding Padilla as an unlawful combatant, a ruling condemned by a Los Angeles Times editorial. Federal District Court Judge Jeffrey S. White's 42-page opinion in Padilla v. Yoo (Northern District, CA 6/12/09) is enlightening on the perils of lawfare. Facing a motion to dismiss Padilla's complaint, the judge goes through a conventional analysis of Rule 12 of the Federal Rules of Civil Procedure, wherein for purposes of deciding whether to dismiss a defendant's motion, the judge assumes that all facts alleged by the plaintiff are true. The trial lawyer who cannot draft a complaint able to get by such a low barrier is in the wrong profession. So John Yoo, having advised in good faith his commander-in-chief on wartime detention procedures for unlawful combatants, now must defend--at personal cost and legal liability risk--a lawsuit filed by former gang-banger Jose Padilla, picked up in Afghanistan, where he had filled out an application form to enter al-Qaeda. Judge White's mechanistic legal analysis ignores this in favor of boilerplate legalese. Anyone care to bet what Yoo's successors will do, when asked for advice on how to treat detainees?
Lawyers for a terror defendant in a New York case wish to visit CIA "black sites" involved in rendition. The New York Times reports that the government says it will preserve the sites during litigation. Meanwhile, also reported in the NY Times, present & former CIA officials have testified before a Virginia grand jury investigating the CIA's destruction of 92 interrogation videotapes.
Bottom Line. A chilling effect on future decisions and advice is inevitable--even if the suits fail, because the expense and time involved will alone deter anyone from taking any chances to winding up in court. Such risk-averse behavior is not the best way to defend America against its enemies. It is not the way America won its wars in the past. Trying to do so now is an experiment we should not have embarked upon. But we have done so.
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