Former OLC attorney John Yoo is appealing a federal district court decision that he may be sued civilly by former detaine Jose Padilla. How Appealing has posted Yoo’s appellate brief here. More details here and here.
UPDATE: How Appealing has links to news coverage of Yoo’s appeal.
Anderson says:
Shorter Yoo brief: “OMG 9/11!!!!”
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November 10, 2009, 2:09 pmuh_clem says:
“John Yoo’s Appeal”
I thought you making a list of very thin books.
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November 10, 2009, 2:10 pmCommenter says:
His torture memos were deeply creepy. But the suit against him seems meritless.
Aside from the hurdles discussed elsewhere, where is the showing of proximate cause?
And are there potential First Amendment implications under Brandenburg of holding him liable for his opinions (it’s not like he said, go torture them; he just said that certain laws supposedly didn’t affirmatively forbid torture).
Wouldn’t professional discipline be a better remedy that trying to stretch the Bivens cause of action to go after Yoo?
It sounds like the judge stretched the law, just as Yoo did in his memos.
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November 10, 2009, 2:46 pmOren says:
Citing an article you yourself wrote in the “Table of Authorities” section is unbelievable hubris.
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November 10, 2009, 3:11 pmRyan Waxx says:
But it’s GOOD when the law is stretched to go after conservatives instead of terrorists.
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November 10, 2009, 3:11 pmOren says:
Man, where’s Luttig when you need him
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November 10, 2009, 3:16 pmruuffles says:
Wow. That’s actually the opening of his introduction.
*Sigh*
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November 10, 2009, 3:21 pmlosantiville says:
Gee I hope you can’t get disbarred for writing lousy legal opinions particularly in cases where the client accepted them w/o complaint.
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November 10, 2009, 3:22 pmRyan Waxx says:
I’m sorry. I had no idea that a Judge confirmed by a democrat-majority congress was incapable of stretching the law in that manner. Your logic is unassailable. No, really!
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November 10, 2009, 3:39 pmUgh says:
U sure can.
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November 10, 2009, 3:41 pmruuffles says:
Who was he nominated by? If you scroll down a few posts, you’ll see one about an Obama nominee confirmed to the 4th. He has the opportunity to do so because Bush was uncompromising in who he appointed so many seats were left unfilled.
It’s telling that you resort to childish ridicule when one point’s out that the judge wasn’t nominated by a Democrat or a “moderate” Republican.
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November 10, 2009, 3:47 pmChrisTS says:
But it’s GOOD when the law is stretched to
go afterhold accountableconservativesofficials claiming to act under the law instead of torturingterroristspeople someone thinks might be terrorists.Quote
November 10, 2009, 3:47 pmruuffles says:
Actually now that I think about it, it’s more telling that veesee goes to great lengths to point out when a 9th circuit opinion is written by Reinhardt et al, or a 6th circuit opinion by Merritt et al, but obliquely ignores the conservative authors of opinions that reach a “liberal” conclusion.
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November 10, 2009, 3:54 pmQuestion says:
ChrisTS, have you read the relevant pleadings in this case? The district court’s opinion? The relevant briefs? If not, how do you know the law was stretched?
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November 10, 2009, 4:02 pmOne Man's View says:
During the entire Bush administration there was in place a rather special rule regarding district court nominees in California. The local Republicans negotiatiated a deal giving Senators Boxer and Feinstein as say in their selection, in return for which they worked for their confirmaiton. Thus, as a practical matter nominations in this era were collabarative and bipartisan. Which is to say that both the identity of the nominating President and the valence of the confriming Congress are of less importance in this situation than they might be in others. All of which, BTW, says absolutely nothing about this particular judge — but it is to say that his path to the position was notably different than that of his peers in many other states.
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November 10, 2009, 4:04 pmDaniel Chapman says:
Well I didn’t have time to read the brief, but I thought I’d check out the comments to get a thoughtful discussion of the highlights.
*facepalm*
Silly me! :)
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November 10, 2009, 4:10 pmtettyan says:
I’m sick of the media reading into this: “OMG — even a judge appointed by BUSH rules against Bush lawyer!” Most people — even lawyers, are unaware of the mechanics behind the selection of district court judges. Yes, they’re all technically presidential appointees, but home-state senators play a very big role in determining who gets nominated in the first place. Both of CA’s senators are hard-core liberal democrats. When both senators from a state are of a different party than the president, generally they have to work out a deal where the president has to nominate some of their favorite picks in exchange for winning their support for his picks. Or, in the case of CA, a bipartisan screening commission (with members hand-picked by Boxer, Feinstein and the CA GOP House caucus) was set up to recommend names to the president. I’m not sure about Judge White’s political leanings specifically, but through this process, it’s inevitable that President Bush appointed several liberal or democratic judges to the federal bench in California during his tenure.
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November 10, 2009, 4:15 pmNunzio says:
Looks like Yoo has a pretty good lawyer
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November 10, 2009, 4:23 pmDjDiverDan says:
If you look at the Brief, the Book written by Yoo was a substantial part of the basis for the Plaintiff’s factual allegations; it’s not like Yoo was citing his own book as legal authority in support of his claim for qualified immunity.
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November 10, 2009, 4:24 pmAnderson says:
Commenter, the allegations as I understand it are that there was a conspiracy to commit torture, and that Yoo’s memos were not written in good faith, but rather as part of the conspiracy.
The assertion is that the memos were so egregious, coming from someone as apparently competent as Yoo, that the finder of fact could decide they were written simply as OLC get-out-of-jail-free cards, not as genuine legal advice.
I think that takes care of proximate cause, though of course it’s early in the suit to be deciding such things; for 12(b)(6) purposes it ought to suffice. Yoo allegedly knew that Padilla would not be tortured without the torturers’ having assurance they would not be prosecuted, and he wrote his memos in furtherance of that end — that, AFAIK, is the gist of the case against Yoo.
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November 10, 2009, 4:25 pmgeokstr says:
Gosh, you’re right. Isn’t it just awful that a libertarian center-right blog would find things “liberal” to be more distasteful than their opposite? Since you hate it here so much, you can always go to those much more fair and balanced sites that you would undoubtedly prefer, like HuffPo, or DU, or Kos.
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November 10, 2009, 4:27 pmArthurKirkland says:
Until John Yoo apologizes and resigns (as a start), I shall hope for arrangement of his opportunity to defend himself in court. If any factor inclining leniency toward John Yoo exists, I have not encountered it. If he continues to believe his conduct passes any legal, moral or national interest test, he should get every chance to make his case.
For a brief seeking reversal and arguing that the lower court’s decision constituted an inappropriate expansion of law, this one relies on ‘authority’ from dissenting opinions to remarkable degree.
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November 10, 2009, 4:29 pmArthurKirkland says:
If provided the opportunity, however, he might trade for a good case.
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November 10, 2009, 4:31 pmRyan Waxx says:
Some people thrive on such ignorance in order to make their arguments.
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November 10, 2009, 4:32 pmAnderson says:
If you look at the Brief, the Book written by Yoo was a substantial part of the basis for the Plaintiff’s factual allegations; it’s not like Yoo was citing his own book as legal authority in support of his claim for qualified immunity.
Insofar as the book is cited merely as part of the facts of the case, it shouldn’t be in the Table of Authorities.
Two of the citations are merely to points where the complaint cites the book, and one is merely a mention of the book, not a citation. The latter shouldn’t have made the Table, and while opinions may vary, I do not myself place in a Table of Authorities cases that are merely cited/quoted by other cases which I do cite — including both seems to me like 2L-ish padding of the Table of Authorities.
Anyway, Yoo didn’t write the brief, so for once the claim of hubris vs. Yoo must be dismissed — he wasn’t citing himself.
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November 10, 2009, 4:32 pmbailey says:
While I don’t want to make broad analogies, isn’t the legal system bending over backwards to assist a jihadist just like the military system did to protect one in their ranks who just happened to kill 13 soldiers at Fort Hood. I realize it’s just so 2001 to mention little things like an ongoing war and the continuing efforts of bad guys to kill us in large numbers. However, they haven’t received the talking points and still seem pretty intent on doing so. I am afraid I will have to continue to not care one little bit about providing access for terrorists to our courts, no matter the circumstances and will fall back on the WWII analogy. Did we give people we captured and who attacked us the same access to our civil courts between 1939 and 1945 that we are intent on giving today?
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November 10, 2009, 4:35 pmAnderson says:
For a brief seeking reversal and arguing that the lower court’s decision constituted an inappropriate expansion of law, this one relies on ‘authority’ from dissenting opinions to remarkable degree.
Estrada especially admires Thomas’s dissent in Hamdi, it’s clear. A curious practice in a 9th Circuit brief, but perhaps Estrada is already aiming higher.
... Btw, I didn’t know this about Estrada (from his Wikipedia entry):
Estrada was married to Laury Gordon Estrada until her death at age 46 on November 28, 2004. She died of an accidental overdose of alcohol and sleeping pills, having also miscarried during the nomination fight.
Damn, that’s harsh.
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November 10, 2009, 4:37 pmAnderson says:
isn’t the legal system bending over backwards to assist a jihadist
Uh, no. The district court merely held that Padilla met the 12(b)(6) standard, which is a low bar.
By Bailey’s standard, courts are bending over backwards to assist *convicts*! Every day, practically!
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November 10, 2009, 4:39 pmbailey says:
Sorry, I just don’t accept the analogy between a standard criminal case and allowing an enemy in wartime to access our courts. As I already said, if we didn’t allow it during WWII, I don’t see allowing it now.
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November 10, 2009, 4:46 pmUgh says:
If Padilla had been treated as a POW, or just treated humanely without being accorded full POW status after his capture, he wouldn’t be in court right now. Instead, the Bush administration decided that they could do whatever they wanted to Padilla, the Geneva conventions, laws of war, the convention against torture, U.S. law, and the United States Constitution be damned.
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November 10, 2009, 4:50 pmUgh says:
And if I were Yoo, I think I would be filing some interpleader/joinder motions so that Bush, Cheney, Rummy, et. al. would be sitting in court beside me.
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November 10, 2009, 4:54 pmRyan Waxx says:
You mean those same conventions that draw a line between uniformed combatants and nonuniformed combatants that you appear to be ignoring? That Geneva convention?
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November 10, 2009, 4:55 pmAnderson says:
Bailey, the law has changed between WW2 and now. The Quirin decision, where a U.S. citizen was involved, is not highly thought of by many judges today. And the Fourteenth Amendment provides persons, not citizens, with some rights.
Leaving aside the dubiousness of the whole “war” bit as regards a punk who wants to blow stuff up. If a Mafia guy comes over here to carry out a hit, does that make the Mafia “at war” with us?
And, as Ugh cogently observes, the feds can’t have their cake and eat it too. If Padilla were a POW who didn’t have certain rights in court, then they would have to treat him as a POW. The existence of those POW rights is one *reason* why POW’s don’t ordinarily have the right to sue — they’re guaranteed certain protections. The feds treated Padilla as neither fish nor fowl, and then quickly caved when their decision to do so was facing SCOTUS review.
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November 10, 2009, 4:57 pmAnderson says:
Ryan, the GC provides certain bedrock protections to everyone, regardless of uniform-or-not. “Not being tortured” is one of those.
A major goal of the GC was to NOT have loopholes which could be exploited to argue that such-and-such category of person did not qualify and thus could be treated however one liked.
There were plenty of ways to proceed against Padilla. As I believe Scalia pointed out, the allegations essentially amounted to treason, and thus the feds should’ve tried him or released him. Which was the approach they eventually took, tho not under the treason statute, perhaps b/c they couldn’t meet the Constitutional burden of proof.
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November 10, 2009, 5:01 pmbailey says:
Ryan, don’t you realize that the GC was put there to hamper us while not placing any restrictions on the ability of this non-uniformed gentleman to plot to blow up a dirty bomb on US soil. It hurts those who follow the rules while actually assisting those who don’t under the standard leftist formula. After all, if you get greater procedural protections when not wearing a uniform, why would you wear one?
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November 10, 2009, 5:15 pmAnderson says:
Fantasy: while not placing any restrictions on the ability of this non-uniformed gentleman to plot to blow up a dirty bomb on US soil
Reality: There was no obstacle to arresting Padilla, interrogating Padilla, trying Padilla. The obstacle was to holding him under abusive conditions without affording him due process, which, contrary to the notions of some, is not a get-out-of-jail-free card, but rather more along the lines of “minimum standards of fairness,” access to counsel, that sort of thing.
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November 10, 2009, 5:19 pmOren says:
Which Circuit hears appeals from the VC dismissals?
I understand that Yoo didn’t write the brief, but it is a brief in favor of defendant Yoo. To cite Yoo’s own work putatively justifying his actions is no more than saying “I didn’t think that I was wrong”, which is a tautology.
It’s unfortunate, rhetorically, that Bush had to cast doubt on the man’s (now unassailable) guilt by holding him without trial — giving the (incorrect) impression that the government did not have a strong enough case to try and convict. Our system of Justice is designed, in no small part, to foster public trust in the government through procedural rigor.
Conversely, it’s rhetorically unfortunate for liberals that Bush did not, in fact, hold an innocent man in a brig for 5 years but rather a very guilty one. That does not erase the sin of not giving him a prompt trial (and holding him up to that point) but it does change the context.
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November 10, 2009, 5:19 pmMark Field says:
We did allow access to our courts, even to confessed saboteurs. See Ex Parte Quirin.
As Anderson says, Quirin is probably no longer good law on the merits, but it is for access to the courts. And let’s face it — those accused of treason have had access to the courts since day one.
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November 10, 2009, 5:21 pmOren says:
Part of being a team player is taking the fall when it has to come. It does Yoo no good to bring down others with him — the Court does not dole out less Justice when there are more defendants.
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November 10, 2009, 5:22 pmnicehonesty says:
If Padilla had been treated as a POW, or just treated humanely without being accorded full POW status after his capture, he wouldn’t be in court right now. Instead, the Bush administration decided that they could do whatever they wanted to Padilla, the Geneva conventions, laws of war, the convention against torture, U.S. law, and the United States Constitution be damned.
A major goal of the GC was to NOT have loopholes which could be exploited to argue that such-and-such category of person did not qualify and thus could be treated however one liked.
Man oh man, I bet Holder, Obama, Panetta, et al. are NOT looking forward to the flood of lawsuits that is sure to be coming their way for their targetted, extrajudicial slaughter of all those people in a sovereign nation we’re not even at war with.
I mean, everyone here is at least as outraged by this ongoing murderous behaviour by the U.S. government against suspected terrorists as we are by Yoo’s legal opinions, right?
Right?
Guys?
Anyone?
Oh. I guess not.
Apparently Yoo made the wrong choice: he wrote legal opinions about how the U.S. could hold and question terrorism suspects which left the suspects alive, healthy, and free to sue him; if he’d been smart, he would have advocated violating territorial boundaries of peaceful sovereign nations to butcher suspected terrorists (along with any nearby innocents) outright without regard to any due process whatsoever.
Lesson learned.
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November 10, 2009, 5:24 pmSteve says:
As I believe Scalia pointed out, the allegations essentially amounted to treason, and thus the feds should’ve tried him or released him.
Anderson, I believe you are thinking of the Hamdi case.
Regardless, considering Padilla currently resides in a Supermax where he will remain for the indefinite future, it is hard to argue that our war effort was somehow hampered by affording him a modicum of due process. You don’t lose the rights of U.S. citizenship just because the government accuses you of something horrible.
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November 10, 2009, 5:27 pmsecond history says:
“John Yoo’s Appeal”
Very little.
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November 10, 2009, 5:32 pmPaul says:
I do wish the courts would hold my lawyer personally accountable for the decisions I make. I’d set him up for the shaft.
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November 10, 2009, 5:32 pmPeter says:
I don’t know any lawyer who can read Yoo’s memos without strongly suspecting (or actually concluding) he was intentionally writing the memo to provide support to a pre-determined conclusion that the Office of Legal Counsel would issue a legal opinion that certain methods of torture did not violate a federal statute making torture illegal. The authorities Yoo cited for his conclusions do not support those conclusions in any way that wouldn’t fail a first year law student writing a legal memo. For example, Bush’s own DOJ later “withdrew” the memo Yoo had written defining “severe pain” under the federal statute outlawing “torture.” Not only did Yoo purport to lift his definition from a federal Medicaid Plus statute that couldn’t possibly be useful as a guide to interpreting a statue outlawing torture, the Medicaid Plus statute did not even say what Yoo claimed it did. As Bush’s later DOJ explained in “withdrawing” the memo Yoo authored, the purported authority relied upon by Yoo does “not define ‘severe pain’ even in that very different context (rather, [the statute uses] it as an indication of an ‘emergency medical condition’), and [it does] not state that death, organ failure, or impairment of bodily function cause ‘severe pain,’ but rather that ‘severe pain’ may indicate a condition that, if untreated, could cause one of those results. We do not believe that they provide a proper guide for interpreting ‘severe pain’ in the very different context of the prohibition against torture in” the federal anti-torture statute.
So, if a lawyer intentionally supports an incorrect conclusion with authority that doesn’t provide authority in order to issue an opinion that acts he should know are in fact illegal are legal, has he engaged in a conspiracy to commit the illegal acts he is declaring legal?
Do lawyers have any ethical or legal constraints on their legal opinions?
I find it difficult to believe any lawyer could lightly brush these questions off. And I therefore don’t find it shocking that a federal judge (even a Bush appointee confirmed by a Senate controlled by a Democratic majority) would allow the lawsuit to proceed.
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November 10, 2009, 5:36 pmAnderson says:
To cite Yoo’s own work putatively justifying his actions is no more than saying “I didn’t think that I was wrong”, which is a tautology.
That would be true, but as noted, the brief doesn’t really “cite” Yoo.
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November 10, 2009, 5:37 pmOrin Kerr says:
ruuffles,
I’m having a hard time understanding your argument. Is your view that the fact that George W. Bush nominated a particular judge must necessarily mean that the judge decided the case correctly? If so, do you think that is true for all legal cases decided by all Bush-nominated judges, or just some of those cases?
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November 10, 2009, 5:39 pmAnderson says:
Ah so, Steve, you are correct. I forget how Scalia distinguished the cases.
So, if a lawyer intentionally supports an incorrect conclusion with authority that doesn’t provide authority in order to issue an opinion that acts he should know are in fact illegal are legal, has he engaged in a conspiracy to commit the illegal acts he is declaring legal?
It happens to tax lawyers sometimes, AFAIK. But they don’t get to write “OMG 9/11!!!!!” briefs.
Nicehonesty, people sue the government all the time. Most of them lose. The government carries on.
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November 10, 2009, 5:42 pmSteve says:
Is your view that the fact that George W. Bush nominated a particular judge must necessarily mean that the judge decided the case correctly?
Isn’t it pretty self-evident what his point is? The fact that Bush nominated a particular judge makes it unlikely that the judge would “stretch the law to go after conservatives.”
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November 10, 2009, 5:45 pmRyan Waxx says:
And no one has claimed there’s an obstacle to arresting him. As you well know, the problem isn’t arresting terrorists... it’s FINDING them BEFORE we lose a couple hundred or a couple thousand citizens. Arresting them after the fact is so far beside the point it doesn’t even deserve a mention.
FINDING terrorists is where liberals are doing their damndest to ensure we don’t succeed... unless, of course, a democrat is in the White House. Then it’s OK. Leftists oppose every method of finding them that’s normally allowed in war but unavailable to the NYPD, from intercepting their communications to using methods short of torture to compel terrorists to reveal plans before our citizens die from them.
If these same leftists had had their way, we would indeed be arresting Padilla... after the fact. But then they can use the corpses to make political hay, so its not like the deaths were a TOTAL loss, right?
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November 10, 2009, 5:52 pmAnderson says:
Here’s Scalia’s dissent in Hamdi, which finds him hitting on all cylinders.
Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.
Not the law, unfortunately, but a good opinion. The conclusion merits quotation in full:
The Founders well understood the difficult tradeoff between safety and freedom. “Safety from external danger,” Hamilton declared,
“is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.
The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.
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November 10, 2009, 5:53 pmAnderson says:
from intercepting their communications to using methods
shortof tortureFixed that for ya.
Those methods you regret are unavailable to the police? They used to be. They didn’t work. They just let the police beat confessions out of whomever they had.
Not the approach I want taken to my nation’s security — thanks, but no thanks.
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November 10, 2009, 5:57 pmpc says:
Are you familiar with the Padilla case? He’s an American citizen that was arrested at Chicago O’Hare. I guess we could have used some Predator drones to go after him at the airport, but that could have gotten kind of messy...
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November 10, 2009, 5:59 pmRyan Waxx says:
Are you claiming that KSM, one of the (*GASP*) three people that are alleged to have been tortured by world-renowned experts like Anderson, gave up no information on his fellow terrorists under duress? Perhaps you need to become more familiar with the debate... not just the parts you WANT to pay attention to.
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November 10, 2009, 6:04 pmAndrew J. Lazarus says:
I am not aware of any liberal’s objection to the methods using in finding Padilla, nor in his initial arrest. Things only got bad when the Bush Administration took him out of the standard criminal process on the basis of their revolutionary, later discredited, employment of lettres-cachet to transfer him to incommunicado indefinite detention. To describe this argument as made of straw would be putting it too kindly.
I can’t imagine what Glenn Beck would say if Obama made the claim he could place anyone in the brig forever based on the suspicion he was a terrorist.
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November 10, 2009, 6:04 pmRyan Waxx says:
Psst. Padilla isn’t the only terrorist out there.
Just in case you forgot.
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November 10, 2009, 6:06 pmnicehonesty says:
Those methods you regret are unavailable to the police? They used to be. They didn’t work. They just let the police beat confessions out of whomever they had.
Not the approach I want taken to my nation’s security — thanks, but no thanks.
So, we should just kill suspected terrorists, and any innocents that happen to be nearby, even if it means we have to violate the territorial sovereignty of another peaceful nation to do so. (And since your comment indiciates you consider national security to be analagous to crimefighting, you surely wouldn’t mind if the police just killed suspects — along with any nearby innocent bystanders — so long as those suspects weren’t beaten first.)
I can’t imagine what Glenn Beck would say if Obama made the claim he could place anyone in the brig forever based on the suspicion he was a terrorist.
Predictably, the comments on this thread prove that Yoo’s mistake was that his approach left the terrorist suspect alive.
No one bats an eye at the targetted assassinations that Holder/Obama/Panetta routinely order.
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November 10, 2009, 6:09 pmSteve says:
Psst. Padilla isn’t the only terrorist out there. Just in case you forgot.
No, but he’s one of the very few who are American citizens. That makes a big difference.
If the government can take away your rights as a citizen just by saying the magic word “terrorist,” then you don’t have any rights. This is not hard to understand.
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November 10, 2009, 6:12 pmAndrew J. Lazarus says:
We’ve been through this a great many times: KSM may have given up information on fellow terrorists under duress, although trained investigators appear to get great results without it. (1, 2, 3). They even claim that a formerly cooperative detainee clammed up when Cheney sent out for some more torture porn (4). Unfortunately, torture also produces vast amounts of false-positive bogus information, including from KSM, which diverts time and attention from real threats. You’re just lucky Padilla didn’t sit next to you in algebra class, or he might have given your name, too. I suspect that would have changed your beliefs in a hurry.
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November 10, 2009, 6:14 pmRyan Waxx says:
Oh heavens no. The NYPD can’t kill suspected terrorists, so neither can the military. Haven’t you been listening to them?
I would assume that the answer to that question depended at least partly on weather Obama had picked the name out of a hat, as some here seem to be assuming Bush had done.
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November 10, 2009, 6:15 pmRyan Waxx says:
And you’ve learned nothing from that discussion except new talking points.
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November 10, 2009, 6:16 pmDon de Drain says:
Peter, you nailed it. Yoo’s opinions remind me of certain tax opinion letters written by various tax professionals which have been/are now the subject of civil and criminal litigation. People were looking for cover in the form of tax opinion letters so that they could pursue certain courses of action. Some tax professionals wrote opinion letters which courts are refusing to let taxpayers rely on for purposes of escaping (sometimes very large) tax penalties, because it was not objectively reasonable for the taxpayers to rely on the opinion letters.
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November 10, 2009, 6:17 pmRyan Waxx says:
I’m sorry, I missed the part were we jailed Padilla’s entire algebra class. Can you give links?
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November 10, 2009, 6:24 pmOff Kilter says:
Oren: “the Court does not dole out less Justice when there are more defendants.”
True, but it is also true that the Court cannot dole out more Justice unless there are more defendants.
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November 10, 2009, 6:56 pmAndrew J. Lazarus says:
You mean, even more trained interrogators rejecting torture. Indeed, I am proud of such new talking points. Meanwhile you’ve stuck with sadism. Pity.
We have acknowledged receiving false allegations from KSM (and others), presumably under torture. It’s true, you don’t have to worry because all those names belong to Muslims, but some of us aren’t so selfish.
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November 10, 2009, 7:30 pmAJK says:
Resigns from what?
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November 10, 2009, 7:32 pmoren says:
You do understand the difference between a car full of terrorists in Waziristan and a man in shackles at O’Hare airport, right? You can shoot your enemies to death on the battlefield, but once you have them detained, the urgency is evaporated and you are left with a man incapable of further harming our interests.
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November 10, 2009, 8:28 pmoren says:
It’s not enough to be right, you need to have others believe that you are right — usually through presenting objective evidence in an adversarial proceeding.
Bush was right about Padilla, that doesn’t mean that he shouldn’t have tried him back when he was arrested.
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November 10, 2009, 8:36 pmtettyan says:
In withdrawing the memos, the Bush’s then head of OLC at DOJ (Jack Goldsmith) also said that though the memos were “untenable” (I believed that was the word he used), he argued they nevertheless were written in “good faith.” We haven’t seen the report from DOJ’s Office of Professional Responsibility on this matter yet. But Yoo has been committed for years, long before he joined DOJ, to a theory that believes that executive power should be broadly construed. It appears his commitment to his opinions is deep and genuine. Whether his opinions on the law are within the “mainstream” of legal thinking I think is a subject that smart people of good faith can have a reasonable disagreement.
In any case, the principal legal issues in this case are not the substantive correctness of Yoo’s legal theories. The issue is whether a plaintiff can invoke a Bivens remedy against policymakers or even legal advisors whose policies or advice somehow or another allegedly led to a violation of constitutional rights. The extension of Bivens in this case is without precedent anywhere, as noted by the 2nd Circuit last week when it dismissed the Arar (Canadian who was subjected to extraordinary rendition) case. And even if the court were to allow a Bivens suit, because of the unprecedented nature of the action and of the rights pleaded, Yoo would certainly be entitled to qualified immunity. The district court got it wrong.
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November 10, 2009, 9:07 pmBored Lawyer says:
Putting aside all the political snark, any thoughts as to what needs to be shown for liability?
As I understand what some commentators here are saying, Yoo wrote a memo he knew was bogus to cover a pre-decided and illegal conclusion.
There is a body of law that sound very much like that: the “sham exception” to the Noerr-Pennington doctrine.
Briefly, in the early 1960s in two cases the Supreme Court decided that attempts to influence the govt. (either through lobbying or litigation) were immune from antitrust liability, mainly on 1st Amendment right to petition the govt. and also statutory grounds. A number of courts have applied that to other causes of action. It is known as the Noerr-Pennington immunity.
An exception is if the lobbying or litigation is a “sham” meant to cover more nefarious activities. For litigation, one has to show that the litigation was both objectively baseless (i.e. frivolous) AND subjectively a sham — the litigant had no real interest in the outcome of the litigation, but only engaged in it to use the process to burden a competitor. Professional Real Estate Investors„ Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993).
Given the importance of free advise by lawyers to their clients, perhaps there should be a similar immunity, subject to a narrow “sham” exception.
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November 10, 2009, 9:13 pmHoward Gilbert says:
When first interviewed by the FBI, Padilla told them that he was a soldier in the Army of Afghanistan and was on a mission assigned to him by his commanding officer (KSM). He was to enter the US in civilian clothes pretending to be a civilian. A soldier in a foreign army has combatant immunity and cannot be charged with civilian crimes. When he pretends to be a civilian, he becomes subject to civilian justice, but during the 10 minutes he was in the international arrivals area of the airport he committed no criminal actions. So he was not a criminal, nor did the government ever claim that he was or could be charged with a crime (for anything he did after enlisting in the Afghan Army).
If he had committed a crime, then the government could have charged him and proceeded to prove its case. However, since he was taken into custody as an enemy combatant (a.k.a prisoner of war, unprivileged belligerent, spy and saboteur) he cannot be charged by the government in court. Detaining a soldier from an enemy army is a clerical function of the military. After he is detained, then Hamdi makes it clear that a US Citizen held as an enemy combatant has a constitutional due process right to contest his combatant classification before an impartial tribunal. Al Marri contested the government claim that he was an enemy combatant, and the Federal District Court in the Fourth Circuit created an appropriate hearing to view the evidence.
In the 3 1/2 years Padilla was in military custody, he never disputed his combatant status. He never requested the tribunal that the Supreme Court said was his right. At that point, the government was in no position to present its evidence in an adversarial proceeding, because Padilla had to initiate the proceedings. In the entire history of the US, no Federal Court has ever held a proceeding to confirm that the military made the right decision when detaining an enemy soldier as a prisoner of war. No such proceeding exists. If the government tried to get such a ruling, they would be told that the Constitution prohibits the courts from issuing an advisory option.
Of course, Padilla was in litigation for the entire 3 1/2 year detention period. However, his lawyers were not disputing his status as an enemy combatant. They were arguing that as a matter of law, even if Padilla was an enemy combatant he could not be detained by the military under current laws.
Another thing that did not happen was that Padilla and his lawyers never claimed that he was being tortured. You would think that if you are arguing before the US Supreme Court, and your client is being tortured, that you would say something about it. Maybe ask the Justices to order someone to stop it? The idea of Torture doesn’t arise until he is in Miami on the old criminal charges left over from his days as a civilian. Then a different legal team invents the claim of torture and tries a Hail Mary motion to see if the judge is receptive.
So the government is left with a lot of evidence, but no place to present it. There is, for example, 3 1/2 years of continuous video recording of everything that happened to Padilla in detention. Every time he ate, slept, or sat on the toilet, it was recorded on tape. If anyone sits down to view 30000 hours of Padilla not being tortured, then at the end they could be sure that Padilla wasn’t tortured.
There are also thousands of hours of Padilla telling them that he was an enemy combatant. Telling them about his training, commanders, units, missions, everything. However, it cannot be introduced into evidence until Padilla triggers things by initiating a court case. That is why the current case cannot ever actually proceed. Since Padilla has no evidence (or at least his lawyers introduced no evidence in his Miami trial) he cannot proceed in this case without testifying. Since he claims here not to be an enemy combatant, his thousands of hours saying that he is an enemy combatant is relevant. Since he claims to have been tortured, the fact that he was fully cooperative and told the FBI everything from the very beginning shows that there was no reason to torture him (and every reason not to). He cannot avoid cross-examination.
Which brings us to Treason. Everyone here agrees that they would be happier if Padilla were tried for Treason. Even Scalia likes it. The problem, of course, is that under the Constitution, a confession to Treason has to be “in open court”. Up to this point, Padilla has never confessed in open court. However, if this case proceeds to trial, he will be given the opportunity. Everything in his history suggests that he will certainly screw up and admit to the things he has already said. Then maybe he goes away for life.
Which is why this entire case is silly. Padilla is the one detainee we know to an absolute certainty was not tortured (remember the video records). People here have argued that the Supreme Court decisions in Quirin and Hamdi were wrong, and that is a perfectly reasonable academic position to take. However, a Bivins case has to be based on Constitutional rights that were clear at the time, not some theoretical position you may take that the Supreme Court is wrong. Yoo certainly made some bad legal decisions, and there are people who may have a case against them. Padilla just isn’t one of them. The only possible outcome of this case is that Padilla incriminates himself for the Treason he has admitted (out of court) on tape to the FBI and the military. That is a rock solid certainty, while the complaint is mostly badly reasoned nonsense.
Which is not to say that Yoo is a good guy or that what he did was right. If you want to get at Yoo, Padilla is not the right choice.
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November 10, 2009, 9:24 pmRicardo says:
I don’t believe so. The district court referred to the case of Lippoldt v. Cole where a city attorney was held liable for writing an opinion saying that a city could deny a protest permit to a group based on the content of their speech. The First Amendment does not allow professionals to express opinions with the expectation that their opinions will be acted upon when those opinions are simply wrong or unacceptably incomplete.
Imagine a doctor saying his statement that a tumor was not cancerous was protected by the First Amendment after the patient is diagnosed with cancer by another doctor and sues for malpractice.
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November 10, 2009, 9:30 pmRicardo says:
I don’t see what the Arar case has to do with this one. The 2nd Circuit said it was unwilling to extend Bivens to case of a foreign national who suffered harms at the hands of non-American officials outside the U.S. based on the theory that U.S. government officials conspired with Syria to torture Arar. The court also noted that immigration officials have very wide discretion in decisions to deport non-citizens. Here, the case is of a U.S. citizen who suffered harms at the hands of American government officials within the incorporated territory of the U.S. Of course Bivens could apply here. The substantive questions are whether it applies to a legal adviser like John Yoo and whether Padilla can show that officials’ actions were egregious enough to get past all the hurdles of bringing a lawsuit like this.
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November 10, 2009, 9:41 pmAnderson says:
Given the importance of free advise by lawyers to their clients, perhaps there should be a similar immunity, subject to a narrow “sham” exception.
As I understand you, I think you’re correct — there’s no way to convict Yoo simply for writing an objectively incompetent memo.
What you call “subjective” sounds to me like “intent.” Yoo had to know that the issue was, at best, doubtful, but write a memo that forced a conclusion that the conspiracy wanted, secure in the knowledge that the memo would immunize torturers from liability. I think you’ve got to have some element like that — presumably, these bogus tax opinions had the same element.
(Really, he could’ve written a memo that covered both sides of the issue and fudged more elegantly, concluding that the law was doubtful; Yoo hurt himself with the grandiosity of his argument.)
he argued they nevertheless were written in “good faith.”
And Goldsmith knew this ... how? I’m happy for the light Goldsmith has cast, but the man may have his own liability if all the facts were known.
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November 10, 2009, 9:50 pmnicehonesty says:
You do understand the difference between a car full of terrorists in Waziristan and a man in shackles at O’Hare airport, right? You can shoot your enemies to death on the battlefield, but once you have them detained, the urgency is evaporated and you are left with a man incapable of further harming our interests.
You do understand the difference between putting a man in shackles at O’Hare airport, and butchering 687 civilians [who] have been killed along with 14 al Qaeda leaders in some 60 drone strikes since January 2008—just over 50 civilians killed for every al Qaeda leader, right, Oren?
Your concern over the inhumanity of Padilla’s treatment rings extremely hollow when you so casually dismiss the murder of almost 700 innocent people by targeted extrajudicial military strikes into a sovereign country with whom the U.S. is not at war.
It’s clear certain commenters are only concerned about military events and government misbehaviour they can milk for political advantage; for some reason the deadlier and more widespread war crimes which killed hundreds of innocents but were conducted by both political parties — and which are still ongoing — just don’t garner as much outrage or attention.
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November 10, 2009, 9:50 pmMark Field says:
Prior to writing these memos, Yoo was principally known for his criticisms of Bill Clinton’s excessive use of executive power and the dangers of the Imperial Presidency. See, e.g., here.
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November 10, 2009, 10:09 pmAndrew J. Lazarus says:
I think this is where the argument begins to go astray. Foreign soldiers can most certainly be charged with civilian crimes; the Japanese recently charged one of our soldiers with rape, didn’t they? And then the argument continues to run downhill: for example, since Padilla was held incommunicado and without any sort of counsel, it’s rather presumptuous to talk about what he did and didn’t demand. Nor does this argument explain why, like the German dual-citizens in Quirin, Padilla couldn’t be tried by a military court as a saboteur. Except, given how Padilla was transferred back to civilian court, maybe there was a shortage of evidence. Even saboteurs are entitled to such a tribunal. What was never intended was the adoption of the tyrannical system of detention at executive whim.
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November 10, 2009, 10:22 pmRicardo says:
This is completely wrong. Padilla was not a soldier in “the Army of Afghanistan” — he was an admitted member of the terrorist organization Al-Qaeda. Likewise, KSM was a senior member of that group — he was not an officer in any military organization. But leaving this aside, suppose Padilla was an enlisted member of a foreign army or intelligence service. The Constitution defines treason as follows:
So your contention that the U.S. could not charge Padilla with any crime is false. It chose not to charge him but that’s quite different from saying there was no basis for criminal charges in the first place.
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November 10, 2009, 10:40 pmCornellian says:
I can’t imagine what Glenn Beck would say if Obama made the claim he could place anyone in the brig forever based on the suspicion he was a terrorist.
Even demanding suspicion is imposing too much of a burden on the Executive branch, it seems. A more precise way to phrase that view would be to say the President can lock you up forever based on nothing more than the President’s willingness to say you are a terrorist.
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November 10, 2009, 11:05 pmHoward Gilbert says:
Combatant immunity means that a soldier cannot be charged with civilian crimes or charged in civilian courts for military matters like training, planning, and combat. Therefore, the months of special demolition training Padilla had at a facility near the Kandahar airport cannot be used as an element of a domestic US criminal charge. Enemy soldiers can also only be charged with crimes recognized under international law (like rape and murder), but international law does not allow claims of conspiracy. So everything Padilla did to prepare for his mission are off limits. Had he been permitted to enter the US, and had the FBI followed him and gathered evidence, then maybe he would have provided the basis for a criminal charge.
Quirin confirms this. When the eight German saboteurs were arrested by the FBI, everyone expected them to be charged with crimes in a Federal court. But then the Justice Department realized that their planning and training in Germany were protected by combatant immunity, and in the week they were in the US they had committed no criminal actions. In the end, the only civilian crime Huber Hans Haupt, a US citizen, could be charged with is that, having entered the US at a point that was not a Port of Entry, he failed as required by law to proceed to the nearest Customs office to file the appropriate forms. In 1942 this would have resulted in a maximum 18 month sentence. This means that if the civilian criminal system did its best, the saboteurs could serve their entire sentence, return to Germany, and rejoin the army long before they had a chance to shoot down US soldiers coming ashore on D-Day. The only way to detain them longer was to transfer them to military custody where they could be held as prisoners of war for the duration of the war.
Yes, Padilla could have been tried as a spy and saboteur. The formal charge is “attempting to pass through lines of defense without uniform.” The administration choose not to prosecute the charge, and that was their right. The Supreme Court explicitly said that they had that right in the Hamdi decision. O’Connor noted that while Haupt had been charged in a military court, that the government was under no obligation to bring the charges and he could have just been held as an ordinary prisoner of war for the duration of the war. Thus the Supreme Court specifically found that there was no obligation to charge a US citizen like Hamdi or Padilla with a civilian or military crime, and they could just be detained without charges during hostilities (although they had a right to contest the detention in court).
Padilla was held without access to lawyers for over a year, while the government used the information he supplied to round up all the people responsible for 9/11. Then the courts ordered that he be allowed to speak with his lawyers. Then two years passed in which he was in contact with counsel and in litigation before the courts, but he did not dispute his combatant status, did not ask for his Hamdi tribunal, and did not say he was being tortured. I am not talking about what he did not ask for during the months he was held in isolation. I am talking about what he did not do in the subsequent years when he had access to counsel.
Yes, there is a shortage of admissible evidence. Padilla was questioned without a Miranda warning and without an attorney. He had no right to a warning or to an attorney when he was originally arrested as a Grand Jury witness, nor later on when he was determined (by his own statements) to be an enemy combatant. Everything he said can be admitted in any civil trial that seeks only to determine if he was an enemy combatant and his detention was lawful. However, in any criminal charge (civilian or military) the statements it was legal to gather from a captured enemy soldier are not admissible against the same person as an accused criminal.
There is overwhelming evidence. Hundreds of recorded hours of statements. Details he provided about the group of men responsible for 9/11 that he knew from personal contact and that would be verified when these men, and their paper documents and laptop computers were captured months later. Viewed from a military intelligence point of view, Padilla’s detention and interrogation were strictly according to law.
If you want to charge Padilla with a crime, then his questioning did not meet Constitutional standards and his statements have to be excluded. But he was never charged with a crime, nor was he ever held as a criminal, nor did the government ever suggest that he would be or could be charged, at least for anything he did after enlisting. He was, of course, convicted of crimes he committed 2–4 years before he enlisted while he was a civilian in Miami.
In the face of the massive evidence of his military status, claiming that he was held at “executive whim” sounds a bit like Creationism or holocaust denial. What is missing is judicial process. It is missing because it is not withing the executive’s power to initiate it. Of course, there certainly was no shortage of litigation. It started two days after Padilla was transferred to military custody and continued throughout his detention. However, this litigation was in the form of “summary judgment” and involved no hearing of evidence.
The power of the executive to detain enemy combatants without criminal charges is certainly a potential matter of concern. However, it has only been used by three presidents for 12 people. There were the original 8 German saboteurs in the 1942 Quirin case (FDR), then Harry Truman used it in 1945 with the last two German saboteurs, and then Bush used in in 2002–3 for Padilla and al Marri. In every case the evidence is overwhelming that the power was used properly, except for al Marri who just plead guilty last week without the evidence against him being disclosed.
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November 10, 2009, 11:27 pmArthurKirkland says:
I think Rumsfeld’s spirit is already at Yoo’s side. Mr. Estrada’s brief is permeated by a Rumsfeldian admonition:
“In some cases, Miguel, you go to appeal with the law you wish you had, not the law that actually exists.”
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November 10, 2009, 11:49 pmHoward Gilbert says:
Although in theory an American citizen can be charged with Treason for serving in an enemy army, the charge has never been made. Even for the thousands of Americans who went to Germany or Italy during the two years of WWII before Pearl Harbor. One practical problem is that service in a foreign army engaged in hostilities with the US is an expatriating act. Enlisting used to automatically strip men of their citizenship, after which since they were no longer US citizens they could not be committing Treason.
Congress changed the law so an expatriating act must be done “with intent”. Nobody knows what that means with regard to Padilla. So he remains presumptively a US Citizen. However, if he confesses to Treason in open court, he can still dodge the immediate bullet by filing an affidavit saying he engaged in hostilities against the US with intent to give up his citizenship. Then he is not a Traitor, but he becomes a man without a country.
Huber Hans Haupt was convicted and executed for “passing though lines without uniform”. His father, Hans Haupt, who had never left the US and never joined the German Army, but who helped his son because he was a Nazi sympathizer, he was convicted of Treason.
Afghanistan is a country on every map. It was a member of the UN and a signatory to the Geneva Convention. On 9/10 it had an army of 45,000 light infantry, a standing army larger than 60% of the other UN members. On July 24,2000 Padilla signed up and enlisted in that army. Over the next two months he went through basic training at the al Farouq camp. Then he pulled three months of military standard, hurry-up-and-wait infantry guard duty, standing with his AK-47 guarding a worthless outpost near Kabul. He was in the army now, it was just the Afghan Army.
The main force of the Afghan Army was engaged in a conventional battle with a similar force of the “Northern Alliance”. The 055 Brigade provided one to two thousand foreign fighters to this army who had been recruited, trained, and supplied by al Qaeda. On the side, al Qaeda also sent 19 men to the US to hijack airplanes.
Curiously enough, one of the documents attributed to Yoo mentioned in the brief submitted today is a legal finding that members of the Afghan Army under the Taliban and members of al Qaeda were not entitled to status under the Geneva convention. I regard this argument as equivalent in legal quality to the Torture Memos. In any event, this question has never been litigated, subject to any adversarial process, or decided by any impartial tribunal.
Although al Qaeda certainly engaged in terror, so did the US with the bombing of Japan. In fact, terror has been an element of US military strategy going back to Sherman and the burning of Atlanta. Engaging in terror is not incompatible with a military force. The North Vietnamese called us pilots “terrorists” because they bombed cities. Now KSM and al Qaeda are clearly criminals, but that doesn’t make every Afghan or foreign solder in the 45,000 man army suddenly a civilian. This is one of the questions that you would think we would be able to resolve after 8 years, but both administrations have plead out every case that might have raised the question.
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November 10, 2009, 11:59 pmRicardo says:
Again, this is wrong. U.S. citizens do not have the legal right to join a foreign fighting force or terrorist organization to give aid, comfort, support, resources or services to a foreign fighting force or terrorist organization. The criminal justice system provides for severe punishment for any citizen who does these things. Combatant immunity does not apply. For that matter, there was never a serious argument that John Walker Lindh was entitled to combatant immunity for fighting for the Taliban since, among other things, he did not wear a uniform on the battlefield. That’s why both Padilla and Lindh are sitting in civilian federal prisons these days.
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November 11, 2009, 12:05 amAndrew J. Lazarus says:
Mr. Gilbert, I think to a certain extent we are talking at cross-purposes. I can see an argument that Padilla was a terrorist who should (like the Quirin dual citizens, whom I believe had been conscripted into the Wehrmacht) have been brought before a military tribunal. At the appropriate time, Bush folded on this, probably because there was not enough evidence. However, there is no combat immunity for blowing up an apartment house. That can be charged in a civilian court no matter what Army the terrorist chooses to belong to (and, it Padilla’s case, I believe he made no claim to be a member of the regular army of Afghanistan, only Al Qaeda). And in the end, that is pretty much what happened to Padilla.
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November 11, 2009, 12:23 amtettyan says:
Yes, you just quoted the Arar hypo, but not every opinion is limited only to the specific hypo at issue. The Arar opinion goes on to discuss at length the reluctance of SCOTUS and lower fed courts to infer a broad Bivens remedy against federal policy-makers on the theory that the policies somehow led to abuses of constitutional rights down the road. The court has never allowed a Bivens remedy against a policymakers for a macro-policy judgment, much less against the legal advisors advising the policymakers. It’s all in the brief, which is rock solid IMHO.
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November 11, 2009, 12:33 amRicardo says:
The court allowed Arar to refile a lawsuit alleging Constitutional violations based on the conditions of his confinement and his denial of representation during the period of his detention in the U.S. It also said that he needed to be very specific about who exactly did what and how each alleged action led to a violation of his rights while on U.S. soil. The fact that the court did not dismiss his due process claims suggests the court did not reach a conclusion as broad as you are implying.
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November 11, 2009, 12:45 amCornellian says:
Padilla was held without access to lawyers for over a year, while the government used the information he supplied to round up all the people responsible for 9/11.
And your source for this assertion would be . . . ?
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November 11, 2009, 2:36 amAndrew J. Lazarus says:
Nineteen of those people died on 9/11, Osama bin Laden is at large, and KSM, who was already well-known as a lieutenant in Al Qaeda, was located through a Pakistani tipster. Padilla probably didn’t know the accurate location of anybody important at the time he was arrested. This assertion comes from a parallel universe (run by Fox News??).
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November 11, 2009, 3:45 amHoward Gilbert says:
“there is no combat immunity for blowing up an apartment house.” On March 9, 1945 a force of 330 B29s appeared over Tokyo dropping incendiary bombs. The firestorm destroyed 16 square miles of the city, leaving a million people homeless and killing 100,000. Those who died were burned alive. Now that’s real terror. Bin Laden is a fourth rate terrorist wannabe compared to General Curtis LeMay, without adding in Hiroshima and Nagasaki. Yes there is combatant immunity for blowing up apartment houses, if you do it in a uniform from a bomber at 20,000 feet.
However, as I pointed out in my comment, a spy or saboteur loses his combatant immunity when he, wearing civilian clothes and pretending to be a civilian, attempts to pass through lines of defense. That is true no matter what his mission may be. Thus Padilla had no combatant immunity when he was captured at the airport. However, his loss of combatant immunity is not retroactive and does not extend back to his training in Afghanistan. Padilla’s statement to the FBI that he intended to blow up apartment buildings establishes intent, which is a requirement of a criminal charge but not by itself sufficient. The problem is that there was no criminal act in the airport, and combatant immunity prevents the government from using military training in Afghanistan as the missing criminal act (just as the Quirin saboteurs could not be criminally charged for their intent to blow up factories by using their demolitions training in Germany as the missing criminal act).
“U.S. citizens do not have the legal right to join a foreign fighting force” You mean like the AVG, better known as the Flying Tigers. It was part of the Chinese Air Force fighting against the Japanese while the US was neutral before Pearl Harbor. They didn’t arrest and prosecute those guys, they made them part of the US forces after we joined the war. Today we call them heroes.
A country that exists only thanks to the efforts of Lafayette and von Steuben has never and will never prohibit Americans from going overseas and joining a foreign army. There simply is no law against it. Of course, when you do this you should be careful to choose an army that will not go to war with the US. A Yank in the RAF becomes a hero. One who, like Haupt, goes to Germany and joins the Wehrmacht becomes a Traitor.
Lindh plead guilty. So has pretty much everyone who could have claimed combatant status. They prefer a fixed prison term to indefinite detention in military custody or a Treason conviction (in Lindh’s case, they had the required two witnesses to the same overt act). This question will not be resolved until someone has the nerve to make the claim of combatant status in court and litigate the question through appeals.
Padilla is sitting in prison now because between 1996 and 1998 he worked with some guys in Miami to raise funds to support rebels in Chechnya. He was a civilian at the time, and his conviction has nothing to do with his service after enlistment in Afghanistan or his subsequent capture or military detention. They are completely independent and unrelated matters. He could have done the Miami thing without going to Afghanistan, and he would still be sitting in jail. He could have joined the Afghan Army without the Miami stuff, and then he would probably still be in military detention in Charleston.
“And your source for this assertion would be . . .” The government revealed what Padilla said to the FBI and to military interrogators in documents filed during his court case. In mid March 2002 he left Abu Zubaydah and went to KSM. He then had a two week training session with KSM, Binalshib, Amar al Baluchi, Mustafa al Harsawi (the guys responsible for 9/11 awaiting trial on that charge before a military commission). They gave him disposable cell phones, e-mail addresses, phone numbers, travel documents, electronic funds transfer instructions, and a really weak cover story. After capture, he told the FBI and then the military everything he could remember about them. This is all on tape and some of it might be introduced either in this case or in the trial of KSM.
The only thing that has not been stated was how important Padilla’s information was in capturing Binalshib on 9/11/2002 or KSM on 3/1/2003. That last part of the story may not be written until historians look back on these events.
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November 11, 2009, 4:06 amRicardo says:
This is not correct. See 18 U.S.C. §2339D:
Your legal theories are nowhere to be found in the text of either the Constitution nor in the laws of the United States. 2339A,B, and C also apply to Americans or foreigners with some connection to the U.S. in regards to other kinds of support activities for terrorist organizations.
So you seem to be conceding that Lindh could indeed have been charged and convicted of treason. If he can be convicted of treason, it stands to reason he could be convicted of a lesser offense like 18 U.S.C. §2339A,B,C, or D since the U.S. clearly has jurisdiction over him as a U.S. national.
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November 11, 2009, 4:37 amOren says:
Except that could, in fact, be charged with a crime. We know this because he was, in fact, charged with a crime. So everything passed this point in your post makes no sense.
Indeed. The former is a matter of US Constitutional law, the latter is not.
(1) I have not ever claimed that Padilla was treated inhumanely. As far as I know, there is no evidence to support a claim of mistreatment. My claim was that, legally, as a citizen of the United States, he was entitled to due process under Ex Parte Milligan.
(2) If Pakistan wants to assert their sovereignty and start shooting down predator drones (they have a few dozen F16s — it would be a slaughter), that’s their prerogative. The fact that they don’t makes your point about their supposed objection somewhat odd.
(3) Even if Pakistan objected, it wouldn’t be a legal matter. As far as I can tell, there is nothing in the laws or Constitution of the US that forbids a President (unless acting in defiance of Congress and certainly not when armed with an AUMF) from engaging enemy forces in a 3rd country in whatever way he sees fit. He is constrained by diplomacy, not law.
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November 11, 2009, 9:13 amHoward Gilbert says:
Although Padilla was charged criminally mostly for activity from 1996 to 1998 in Miami, one charge applied to his enlistment on July 24,2000. When you enlist you are a civilian, although after you enlist you become a soldier. The form of enlistment is a request to receive military training, so in this case his “enlistment” incorporates a violation of 18 U.S.C. §2339D. I did not mean to suggest that Padilla could not be charged criminally for requesting military training from a designated terrorist organization (al Qaeda) but rather that after he was trained and became a soldier in the Afghan Army, he was not subsequently charged with any crime for anything he did after that point. I would argue that you cannot point to his service in Afghanistan as the missing criminal act in order to charge Padilla with conspiracy to blow up apartment buildings, although all we can say for sure is that no such charge was ever made. Obviously, the fact that the only evidence (his un-Mirandized statements) are not admissible is another theory to explain why no charges were made. Treason is a special crime, however, because it applies to being an enemy soldier, not anything specific act as an enemy soldier
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November 11, 2009, 9:27 amrpt says:
It’s a Giuliani brief from the outset: “Noun-verb-9/11″.
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November 11, 2009, 10:09 amRicardo says:
Howard, I’m not sure what is left of your argument then. Above you said, “The problem is that there was no criminal act in the airport, and combatant immunity prevents the government from using military training in Afghanistan as the missing criminal act.” Now, you appear to concede that Padilla can indeed be charged for his “military” training in Afghanistan. At the same time, you conceded that John Walker Lindh could have been prosecuted for treason had the U.S. had the inclination to do so. This would be in addition to violations of 2399A and B which, I believe, he plead guilty to.
You started this debate by stating that the U.S.‘s hands are essentially tied when dealing with U.S. citizen enemy soldiers. Since it cannot try them for any crime it must either hold them as enemy combatants or release them. Clearly, this argument is incorrect. Scalia’s dissent in Hamdi provides a lot of good material showing a long history of the U.S. criminally charging American citizens for joining an enemy country or fighting force and fighting against the U.S. He points to another case less famous than Quirin where Americans were criminally charged for espionage while the Germans who worked alongside them were not criminally charged. The evidence here is just overwhelming that American citizens can be criminally prosecuted for joining forces hostile to the U.S.
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November 11, 2009, 10:33 amHoward Gilbert says:
Jose Padilla told the FBI that he came to the US on a mission to blow up apartment buildings using natural gas. Since he entered the US pretending to be a civilian, he was subject to prosecution for domestic civilian crimes, including possibly the charge of conspiracy to commit mass murder by blowing up apartment buildings. However, criminal charges in general require a criminal act, and conspiracy requires a conspiracy. The intent he admitted to is not enough by itself to make a charge. This is where you cannot reach back to Afghanistan to his military training in demolitions or his military planning for “the apartments operation” to provide the missing act or conspiracy in order to charge Padilla criminally for what he was doing in the Chicago airport or for what he admitted his mission to be while being questioned by the FBI in the Federal lockup in Manhattan. Other than the hypothetical charge of intended terrorism and the possibility of Treason, Padilla committed no plausible criminal act after joining the Afghan army as a soldier following basic training.
Since everyone seems to like to quote Scalia’s dissent in Hamdi, maybe it would be helpful to cite the majority opinion that actually says what the law is:
Padilla stated that he was an enemy combatant after being detained by the FBI. Unlike Hamdi and al Marri, he never contested his combatant status in his extensive litigation. Even by Scalia’s analysis as cited here by the majority, Quirin applies to Padilla. If you insist otherwise, then the clear opinion of the majority is that the government must be given an opportunity to present its overwhelming evidence that Padilla was an enemy combatant. Otherwise, you have to answer the question that the majority asks here: by what theory of law do you assert that once the question of enemy combatant status is contested in any way, the government is then precluded from presenting evidence to prove the contested question of fact and must then abandon the question entirely and proceed to prove some other charges?
With regard to the criminal charges cited by Scalia, all of them involve civilian US citizens. None of them (except for Haupt) involve US citizens who traveled overseas and enlisted in a foreign army. He even repeats the distinction I made in an early comment, Haupt was charged in military court, but his father who had stayed in the US and was a civilian was convicted in civilian court of Treason.
What would be more convincing would be a claim that Gaetano Territo (in re Territo, Nith Circuit, 1946) or any other US citizen held as a POW during WWII was charged with some civilian crime simply for his service in an Axis army (don’t cite Tokyo Rose, she was never in an army).
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November 11, 2009, 12:35 pmfishbane says:
If it weren’t so sad comments like this would be funny:
In an attempt to score political points, some people seem to be eager to demonstrate just how afraid of teh terror they are.
As a New Yorker who watch the towers fall, and apparently one of those “leftists” despite being a libertarian, all I can say is I hope that not everyone with whom I disagree with on the topic of defending civil liberties in this country is such a bed wetter.
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November 11, 2009, 1:22 pmOren says:
Why do we need any concession on the matter. Padilla WAS convicted of just those offenses, in a regular Federal Court, affording him all the protections recognized as essential to due process. It’s absurd to continue to debate this factual point.
And those criminal acts were documented in a long indictment, which you can read. He went before a jury of his peers and was convicted. That generally closes the case on whether there were actionable criminal acts.
Why should I have to answer the question? Milligan stands for the proposition that you may not charge a US citizen in a military Court so long as the Federal District Court in the area in which he is seized functions. The District Court in Chicago functions, ergo he should have been charged there.
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November 11, 2009, 2:22 pmOren says:
Interesting also that actual New Yorkers are still rather liberal...
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November 11, 2009, 2:25 pmHoward Gilbert says:
Milligan stands for the proposition that you may not charge a US civilian citizen in a military Court so long as the Federal District Court in the area in which he is seized functions. As the Hamdi decision notes:
Haupt, like Padilla, was captured in Chicago. In fact, Haupt’s case was stronger because he had been in Chicago for a week living with his parents, while Padilla was captured at the customs counter of the airport (at the boarder requesting entry into the US). Of him, the Hamdi majority noted:
Rather than repeating the argument, the application of Quirin and Hamdi to Padilla’s individual circumstances is thoroughly covered in the Fourth Circuit decision in Padilla v Hanft.
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November 11, 2009, 3:01 pmOren says:
Citizens of the United States of America do not request entry. Try again.
Argument by assertion. Until his (eventual) conviction, Padilla was only accused of taking up arms against the US.
Moreover, Luttig wrote a scathing opinion basically noting that the entire premise of the government’s argument was fraudulent. The DOJ asserted, in a court of law, that Padilla could not be tried in a civilian court without risk to national security. It then did exactly that, and in doing so fatally undermined the conclusion in Padilla v. Hanft. Far from preserving the decision as binding precedent then, Padilla v. Hanft is now entirely discredited as a product of blatant government misconduct — quoting it as authority is somewhat less than persuasive.
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November 11, 2009, 5:00 pmcubanbob says:
For once I agree it’s Bush’s fault. All this back and forth is absurd. Bush should have acted and submitted to congress after 9/11 that those caught on the battlefield and not wearing the uniform of a recognized nation state are not covered by the GC and subject to interrogation by any means deemed necessary and also subject to summary execution.
The Allies routinely shot enemy troops caught out of uniform as saboteurs and so did the Germans. Indeed if I recall correctly while a number of Germans were (rightfully) executed for war crimes, none were executed for executing Allied soldiers caught out of uniform such as commandos.
Walker should have summarily executed in Afghanistan when captured and Padilla should have been interrogated and then shot for being caught out of uniform attempting to commit sabotage. The constitution is not a suicide pact and these attempts to use our legal system to subvert our ability to prosecute the war is alarming.
Does it not scandalize any of those commenters posting here that an illegal combatant who waged war upon the United States is being allowed to use our legal system to undermine the government’s ability to prosecute the war against that very same enemy?
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November 11, 2009, 6:02 pmHoward Gilbert says:
Quirin is “discredited”, except that the Supreme Court continues to quote it and rely on the precedent. Padilla v Hanft is “discredited”, except that the Fourth Circuit continues to quote it and rely on it as precedent in other decisions. When the law is absolutely clear and against you, people invent their own classification in which the cases they don’t like are “not highly thought of by many judges today” (to cite language used in a previous comment in this thread).
As to the claim that criminal prosecution was a key factor, consider what the text of the decision has to say about that:
It would appear that the decision does not logically depend on the question of criminal prosecution. However, there is a difference between national security viewed going back and going forward. The question before the court was whether Padilla’s detention was legally justified. Clearly his first year of military detention (while he was being actively interrogated as a key source of military intelligence) was absolutely essential to national security. The court needed to issue a decision that clearly established the precedent that such detention is completely legal.
However, military interrogation of Padilla ended after the first 20 months. After that date, his continued detention served no military purpose. He probably would have been transferred to Miami years earlier than he was, except that once his case was in litigation the government needed a total victory, like the Fourth Circuit gave them, before it could terminate military custody and transfer him to the civilian criminal system.
Given that during the first year “Padilla could not be tried in a civilian court without risk to national security” (although that was no longer the case) the question before the Fourth Circuit was properly presented. The decision affected the interpretation of law during that period and not the disposition of Padilla after he was long past his “best if used by” date. Given that the Fourth Circuit continues to cite it as precedent and has never doubted its validity, claiming that it is “less than persuasive” is just another way to try and ignore the decisions that prove conclusively that you are wrong.
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November 11, 2009, 6:40 pmoren says:
No, it’s discredited because the author of opinion came out and said that the government blatantly lied to his court, manipulated our system of justice and publicly discredited itself in the process.
It’s further discredited by the fact that the only reason that it was not overturned by the SCOTUS is that such a decision was so inevitable they chose to withdraw the case to avoid review. You can call that persuasive precedent if you like. Here on planet earth, the fact that the DOJ yanked the case right before the SCOTUS overturned it generally suffices to prove the proposition that it is no longer good law.
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November 11, 2009, 7:37 pmHoward Gilbert says:
If there is one thing we have learned about the Supreme Court from the detainee cases, it is that nobody has done a good job of predicting the outcome. Of course everyone claims that they won, but when you push through the BS you learn that in almost every case the court began by rejecting the arguments of both sides and then came to a completely unexpected result based on reasoning in none of the briefs. So the one thing we know is that when anyone says that “well of course the Supreme Court was about to do ...” then he is full of crap.
Rather than claiming you have bigger crystal balls than anyone else, you should instead argue the merits of the issues. If you assert that the Court was just about to reverse all its previous positions to completely change the law and agree with you, only they didn’t get a chance ... well do you really expect to convince anyone who didn’t already agree with you?
The DOJ already argued the Padilla case in front of the Supreme Court on appeal from the Second Circuit. They were prepared for a decision on the merits, but got one based on procedural issues. So why do you assert so blandly that they were afraid to argue the same set of issues before the same Court a second time, especially when the Forth Circuit decision was so strong and in the interim the Supreme Court had, in Hamdi, already overturned the logic that the Second Circuit used to rule in Padilla’s favor. So the second time around their case was, in every possible way, vastly stronger than it had been the first time they argued it.
Since Padilla asks for summary judgment, the Fourth Circuit begins by accepting the facts as alleged by the government (which is why in Oren’s previous comment the quoted section of the decision is not “argument by assertion”. In summary judgment the court must decide by assuming the assertions of fact of the other party since there has been no opportunity yet to determine facts.)
The Fourth Circuit makes two redundant arguments based on two Supreme Court precedents. Padilla could be classified as an enemy combatant and held under the facts and law as defined by Hamdi (because like Hamdi he was present on the battlefield in Afghanistan fighting with the Taliban forces). In addition, Padilla could independently be classified as an enemy combatant under facts and law that match Haupt in the Quirin decision (captured in Chicago attempting to enter the US pretending to be a civilian while on a mission of sabotage).
The Supreme Court would have had the same obligation under summary judgment to simply accept the government allegations of fact and then consider, assuming Padilla was an enemy combatant as defined by Hamdi and Quirin, whether the law required that he be released from military custody. There is no reason to believe that the Court was interested in either overturning the recently delivered Hamdi ruling or the Quirin decision (that O’Connor so clearly cautions Scalia against overturning in the quote I previous cited).
Of course, the Supreme Court might have done something completely unexpected again. I do not preclude this, but summary judgment is a pre-trial motion and there is no particular legal reason why the court, if it were inclined to do something for Padilla, would decide to act now before any facts had been established in a real trial. The other consistent behavior of the Court has been that it never misses an opportunity to put off a decision on the merits when it can rule on some narrow or procedural ground. Ruling against Padilla here would simply return the case to District Court to begin the real trial, and then they would have a third shot at it when there was an actual verdict.
Having received a 100% vindication from the Fourth Circuit, the government had no reason to keep Padilla in military custody. It had been two years since they had even bothered to ask him questions. He was simply taking up expensive space, and there was a criminal case in Miami that needed him as a defendant. That, rather than some imagined fear of what the Supreme Court would do with a premature appeal, determined what happened next.
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November 11, 2009, 9:20 pmzuch says:
Hmmmm. No Youngstown cite.
Cheers,
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November 12, 2009, 12:40 amAnderson says:
Does it not scandalize any of those commenters posting here that an illegal combatant who waged war upon the United States is being allowed to use our legal system to undermine the government’s ability to prosecute the war against that very same enemy?
Uh, no, because penalizing those who conspire to torture prisoners does not “undermine” our war; it *aids* our war by helping to rebuild our national honor, improve our intelligence gathering, and restore the rule of law.
Those who do not care about national honor, accurate intelligence, or the rule of law are free to idolize Mr. Yoo.
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November 12, 2009, 8:22 amAndrew J. Lazarus says:
As indeed they do. This thread, like so many others, shows some Americans prefer bad intelligence obtained by sadistic methods to good intelligence obtained by establishing rapport with the prisoner. Intelligence isn’t the point for them, instead the process is some sort of collective Viagra for the humiliated.
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November 12, 2009, 11:02 amAnderson says:
“Collective Viagra for the humiliated.” Deftly said, sir. That would be a splendid title for a blog amassing examples of same.
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November 12, 2009, 1:24 pm