John Yoo has a second op-ed on the Jose Padilla's lawsuit against him, this one in the Wall Street Journal.
The lawsuit by Padilla and his Yale Law School lawyers is an effort to open another front against U.S. anti-terrorism policies. If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11. . . .
Worrying about personal liability will distort the thinking of federal officials, who should be focusing on the costs and benefits of their decisions to the nation as a whole, not to their own pockets. Even in the wake of Watergate, the Supreme Court recognized that government decisions should not be governed by the tort bar.
In a case about warrantless national security wiretaps ordered by Nixon's attorney general, John Mitchell, the court declared that executive branch officials should benefit from qualified immunity. Officials cannot be sued personally unless they had intentionally violated someone's clearly established constitutional rights.
The Padilla case shows that qualified immunity is not enough. Even though Supreme Court precedent clearly permitted Padilla's detention, he and his academic supporters can still file harassing lawsuits that promise high attorneys' fees. The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement via the ballot box.
The prospect of having to waste large sums of money on lawyers will deter talented people from entering public service, leading to more mediocrity in our bureaucracies. It will also lead to a risk-averse government that doesn't innovate or think creatively. Government by lawsuit is no way to run, or win, a war.
This time Yoo wisely avoids comparing himself to Abraham Lincoln, and the result is a more serious contribution to the discussion of Padilla v. Yoo and its implications.
Related Posts (on one page):
No.
"If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11. . . ."
I'm not sure he meant to phrase it in exactly that way.
Seems like Yoo's arguments would contribute to closing off every single avenue available to contest government abuses. Put this argument down with Scalia's "New Professionalism" as just another excuse to let people completely off the hook for their decisions.
I'm all for government trying to innovate and think creatively, but isn't risk-aversion a good thing for it to have, not a bad one?
As if Yoo is not the embodiment of mediocrity. I honestly can't think of a worse public servant than Yoo who single handedly caused more damage to the United States.
I am not a fan of this lawsuit but reading Yoo's editorials makes me want to reconsider my position.
Not if the risk is of offending someone, somewhere.
There are a lot of organizations with far more money than any individual bureaucrat. The threat of being personally bankrupted by some organization that doesn't like what you did or failed to do would open the door to government-by-extortion.
I guess, but the idea of allowing government agents or agencies to harm people without consequence or punishment strikes me as both unjust and inviting abuse of power. Is the risk or harm of government-by-extortion really worth the risk or harm of unpunished crime-by-government and uncompensated tort-by-government that the assorted immunities and privileges (state secrets, sovereign, qualified, etc.) allow? I come down on the "no" side.
If the purpose of the lawsuit is to establish whatever the government has done to to Padilla is wrong, sue the government as the defendant and argue that any asserted governmental immunities should not apply.
I really can't imagine why some people accuse this administration of regarding themselves as above the law . . .
As far as torts go, governments routinely commit them against their subjects. You call 911 and report a crime in progress. The cops respond too slowly, and the perps get away. Negligence? Gross negligence? Is it worse if the government has disarmed you (arguably implying a commitment to protecting you, i.e. increased duty and detrimental reliance)? Even when we get to intentional torts, there are still plenty of situations where the government would face significantly more liability than they do now. For example, you are arrested without probable cause (as I have been)? It is likely at least false imprisonment, assault, and battery.
My view is that you need to put the standard of immunity low enough that negligent and non-egregious or non-grossly intentional torts are protected. Absent that protection, I suggest that we will run out of people willing to work in any government position that is exposed. Probably, a standard where the likelihood of the plaintiff winning is significantly better than the defendant. Predominance (or 50/50) is just not efficient. It would too significantly impair the working of the government to be effective. At a minimum, loser should pay in order to keep meritless suits from ruining government employee defendants.
I do think though that Yoo is arguing that the standard for immunity should be raised/lowered so that more people, or at least more actions, are absolutely immune.
Rounding up and detaining people for indefinite periods of time on the basis of unreviewable executive fiat is hardly innovative or creative. In fact, such pretensions to royalty were well known even to the founders of our Republic.
"Daniel, its the absurd 9/11 reference - the new Godwin's rule of sorts."
Now that is absurd, since the subject of Yoo's memo was the interrogation of actual 9/11 conspirators. And Padilla was apprehended as a result of interrogating those perpetrators.
Did Godwin's law apply at the Nuremberg trials? Was it absurd and over the top to refer to the Nazis as Nazis?
Sue officials for carrying out those acts and the Left will suddenly discover that policy by tort is a bad idea.
Think of how great it would be to force some law student out of school and into Burger King because he couldn't keep up with the legal expenses.
they also don't like the nazi stuff because it points out the utter nonsense of allowing access to our courts by our enemies. what has changed in the last 60 years that it is regarded as somehow romantic or adventurous to be a mouthpiece for the modern nazis.
before you go off on how different the menace is, at least the national socialist movement had its inroads in only one country. give us a list of how many islamic nations are either sympathetic to or have a significant population sypathetic with the goals of the jihadists. then, tell us again how insignificant the threat is.
We want government to be "risk-averse" when it comes to human rights violations; indeed, we want government to be on guard against them. This will not take place if government employees feel that it's a job perk to be shielded from responsibility by the taxpayer.
What I propose to do about the harm Yoo is talking about is: absolutely nothing. I look at that price/harm as falling into the "no big deal/worth paying" category. I don't think immunities need bolstering, I think they need gutting, and I see the costs of doing so as one part worth it, and one part the point to begin with.
The Padilla case shows that qualified immunity is not enough."
Isn't Yoo tacitly admitting here that he was responsible for violating Padilla's clearly established constitutional rights?
Besides, many look at things with 20/20 hindsight. We haven't had any attacks on U.S. soil since 9/11 (though Padilla was sure trying). But on 9/11, and indeed, for years afterwards, even our elected leaders didn't know how grave the potential was. They made the determination that there was a significant likelihood of a repeat attack, and decided to minimize the probabilities that it would work.
So, now with your 20/20 hindsight, you are trying to second guess the President, Congress, etc. who were at the time operating on imperfect information (which you may still be operating under, given credence to the Administration's claims that they have thwarted a number of planned attacks).
as to Nuremburg, didn't we wait until after the enemy was vanquished to try them? we weren't conducting ongoing trials in the US while the enemy was still killing our soldiers on the battlefield. tell me, oh great intellect, did we have nazis accessing our courts at any time in WWII other than in the situation when we actually captured some coming into this country to commit acts of war. we must have been so backwards back then, not to allow our enemies into court with representation from the finest law schools in America.
1) padilla was involved in 9/11
2) not opposing lawsuit = support for terrorism
are serious, or just kind of off the reservation. the argument is whether qualified immunity reaches memos reasonably expected to be relied upon as justification for acts of questionable constitutionality.
if we agree that we want an answer to that question - whether such suits are cognizable - then it seems that we need a litigation vehicle to answer it.
i don't pretend to know the law on qualified immunity in this area well enough to answer the question of whether the case should be dismissed, but i think it's sort of pathetic that, almost seven years later, many still shamelessly trot out the "you help the terrorists win" cliche.
You mean Bush's anti-Constitution policies?
"...wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11."
How can anyone seriously write such nonsense? The war has made us our own worst enemy. Far more Americans have died in Iraq than on 9/11. A trillion dollars in treasure squandered. Unknown numbers of jihadists recruited. Maybe Bin Laden could have been nabbed if we'd put sufficient forces into Afghanistan quick enough. Now, for our troubles, we have a Shiite government (sort of) in Baghdad that will be naturally aligned with Iran. The Turks are attacking from the north. Pakistan is destabilized.
Nineteen thugs armed with boxcutters--they have succeeded beyond their wildest dreams in undermining our country, thanks to Bush and his crew of neocons. I find it difficult to take seriously anyone who treats Bush's war with respect.
While such lawsuits may be legitimately criticized for other reasons, the reasons Yoo proffers don't cut it based on my experience in suing governmental officials. In the run-of-the-mill police abuse case, the plaintiff's attorney is looking for a case that promises a likely payout; knowingly taking a loser case just doesn't happen. This economic reality helps insure that only meritorious cases get filed. Moreover, individual defendants virtually NEVER pay for attorney's fees or any damages that might be awarded; the employing governmental entity picks up the tab.** This has been true even with Bivens lawsuits against federal officials. As a matter of policy (no doubt to keep employees happy) the US gov't pays the fees and the damages.
(** A rare exception, and the only I know of, was the Rodney King civil lawsuit against the LAPD.)
Now it is true that occasionally someone will file a high profile case even though legally the chance of prevailing is small, and the immediate financial rewards slight. What motivates the plaintiffs and their attorneys in those cases is not the prospect of a financial recovery but rather the opportunity to make a political point, getting the press coverage, etc. In this very infrequent case, the plaintiffs are often represented by lawyers from public interest law firms where the financial merits of a lawsuit is a secondary (and sometimes non-existent) consideration.
So if Yoo's point is that lawsuits like the one against him are legally meritless, then he should say that. And maybe the plaintiff and his attorneys should be subject to Rule 11 sanctions. (I'm not familiar with the governing law and facts surrounding Yoo's lawsuit so I have no opinion if such sanctions would be warranted.) But he should not disparage these lawsuits because of the supposed venal motives of the plaintiffs and/or their attorneys, while falsely suggesting that individual defendants are faced with paying attorneys' fees and a potential damages award.
I agree with your larger point, but as a matter of historical accuracy the actual Hitler had plenty of defenders and mouthpieces, too. I'm just rereading volume II of William Manchester's wonderful Churchill biography The Last Lion, and you'd be amazed and disgusted at how many people had nice things to say about Der Furher.
Wow. If you believe Padilla had something to do with 9/11, you're living in a different world than I am, indeed.
Padilla was part of the network of the 9/11 conspirators, he wasn't involved in 9/11 itself, he was involved in another conspiracy which was a branch on the same tree. Here is a good recital to the story of how he was caught via the 9/11 investigation:
So yeah, I consider being involved in a terrorist plot hatched by the same guys that hatched 9/11 "something to do with 9/11".
To make your position even more absurd, it was not Padilla that was the target of the interrogation techniques that were the subject of the Yoo memo, it was Abu Zubaida and KSM, the guys that gave him up.
That's how it was in my days in the bureaucracy, anyway. The defendant does have to worry about fact that it's not mandatory that they cover him, and if he got WAY out of line they might not. Never heard of it happening, but the govt can if it ever wants to. In practice, a guy with Yoo's rank need not worry.
Does sound like one very stupid theory for a lawsuit. I wonder if they just hope to survive Rule 12 and get discovery? From the description of the suit, I'd not give much hope even for that.
Nothing more than yet another assertion that anyone opposing any part of administration policy supports the terrorists.
Well, Jose Padilla is a terrorist isn't he? Found guilty by a jury of his peers, and all that stuff. So isn't Yale providing some support for Padilla? Free legal representation, in a private lawsuit that has nothing to do with his defense, is by most definitions support, or at least supportive. So by a plain reading of the English language, yes Yale "supports the terrorists". But I suppose your objection is the use of the plural, and that is probably a valid point.
How 'bout Janet Reno?
Very true. That does not mean, however, that every criticism of the administration is based on such hatred (as is so often implied), nor that every action the administration has taken is correct, or legal.
Do you have the slightest insight into qualified immunity? I think we're all familiar with your positions on the rest of these peripheral issues. If your definition of "involved" is not off the reservation, then Yoo shouldn't have a problem.
After being held for more than three years, effectively a "non-person", with no rights whatsoever. And not of a single thing the administration claimed initially to justify their treatment of him.
Well, Jose Padilla is a terrorist isn't he? Found guilty by a jury of his peers, and all that stuff. So isn't Yale providing some support for Padilla? Free legal representation, in a private lawsuit that has nothing to do with his defense, is by most definitions support, or at least supportive.
Yes, and every lawyer who assists a prisoner in a habeas proceeding, which is collateral review taking place subsequent to a conviction by a court of competent jurisdiction, "supports" the commission of that crime.
This "logic" isn't cute, or clever, or anything.
As a matter of fact, an acquaintance of mine was personally sued for acts he allegedly committed regarding the proposed move of the Terra Museum of American Art, while he was head of the Illinois AG's department of charitable trusts. And yes, he decided he had had enough of public service, and joined a firm.
Umm... maybe that he has to spend lots of his own money to defend a frivolous lawsuit? That most people can't afford to do this without being bankrupted?
Have you been reading the posts on this issue?
to make them.
If the lawsuit is frivolous, the plaintiff's attorneys will be at a minimum subject to Rule 11 sanctions and possible bar discipline. See how non-government attorneys are subject to the consequences of their decisions, acts, and omissions?
Yes, where is Dean Edley's support when one of his team is in the hot seat?
I didn't say providing a defense is supporting terrorists, after all that is a required component of the trial and has to be done before sentence can be passed and carried out. It wouldn't be proper to say that John Adams was supporting British tyranny when he defended the British soldiers that perpetrated the Boston Massacre in 1770. However if he sued the survivors with some novel legal theory of illegal assembly to bankrupt them and deter opposition to the British occupation, well then yes, you could say that Adams was supporting British tyranny.
So if you want to qualify Yale's support of terrorist, by saying "Yale is supporting a terrorist not because they approve of massacring innocent US civilians, but because they think the current administration is more dangerous than Al Qaeda", that is fine. But by plain English reading of the word, they are "supporting" a terrorist.
I think some accusations of supporting terrorists are wrong, it is not supporting terrorists to oppose the Patriot act, vote democratic, oppose the war, etc. etc. But in this case it is, because the dictionary says its so.
never mind, dude.
Your twist of "support" borders on the demogogic.
In the broadest sense, "support" means proving some benefit to a particular cause. In this broadest sense, cutting the defense budget "supports" the terrorists, voting for Democrats (who are more likely to cut the defense budget) "supports" the terrorists, opposing torture "supports" the terrorists. Simply performing an act while knowing that terrorists will receive some collateral benefit consistutes "support" in this broadest sense.
But in most contexts, "supports" has a more stringent mens rea component. Not only do you know that the collateral consequence will occur, but it is your motivation to commit the act.
In your hypothetical, you imputed this motivation by stating that John Adams would have been intending to "deter opposition to the British occupation." But no one seriously believes that Yale is motivated or hoping for more terrorist attacks. Your insistence that they "support" the terrorists is a rhetorical ploy to impute this motivation nonetheless. That is, frankly, outrageous.
By your broad definition of "support," then you "support" torture because the policies and results you advocate (e.g. shielding Yoo) make increasing the likelihood of torture a foreseeable consequence. The fact that you are not trying to get more torture is irrelevant. Your impending outrage at my comment only shows that anyone can play the demagoge game.
Even if the government is paying the bills, you can't get your time back if you're spending day after day in deposition or searching for documents.
And it doesn't take much creative lawyering to come up with unsupportable factual allegations that will survive a motion to dismiss on QI grounds (even though they won't survive a MSJ).
Nick
Isn't Yoo's argument just special pleading?
In the context of this suit, I can't see how a private attorney would be liable. He gives legal advice, his client acts on it and injures a third party. Third party had an action against his client. Client is free to join the attorney in the case, since attorney had a duty to him, but I can't see where the injured person has a remedy against the attorney.
CA permits suits against attorneys by the third party. Such suits go back at least to Ultramares v. Touche. Here's the abstract of an article which summarizes the law.
Borders on????
Kazinski can no longer rely on Depends to keep him dry. His fear of a bunch of guys living in caves in Pakistan is now so overwhelming that only John Yoo can restore his bladder control.
Right, but when the government agency has rules and standards, and you break them in defiance of them because you're the decider, does it really make sense to sue the taxpayers or the person who betrayed them?
That's just terrible. How are attorney's supposed to do their jobs and be all creative and innovative if they might face penalties for breaking the law or violating people's rights?
We must remedy the situation immediately.
Actually I would have to contribute to John Yoo's legal defense to actually support him. Just as I wouldn't say your are supporting a terrorist by saying Padilla has a right to sue Yoo. But Yale in this case is providing actual support for a terrorist. I would not go so far as to say Yale supports terrorism.
But as to my supposed outrage, I'm not outraged. I support waterboarding and enhanced interrogation techniques against terrorists, although I do not consider them torture. And if that makes me an unspeakable monster, then I'll call a news conference and announce that I'm running for Congress:
The election of 2000 was decided by Republican operatives who rioted in the courthouses of Florida, preventing duly authorized persons from counting ballots that had never once been counted. These Republican operatives included Rep. John Sweeney (R-NY) and other U.S. representatives, and staffers of Rep. Tom DeLay. By putting the ballot counters in fear of their lives they were engaged in acts of terror. In short, George Bush took the White House through acts of terror against innocent American citizens in Florida in November 2000.
Since then, the Bush administration has promoted and practiced terror plenty of times. John Walker Lindh, who never took arms against his country, was dragged to America in a state of terror.
An Iraqi military man walked into Abu Ghraib prison of his own accord to talk to the Americans, and was stuffed head first into a sleeping bag and asphyxiated. If that wasn't an act of terror I don't know what is.
Anyone who does not condemn the terrorist acts of the U.S. Army and the CIA and the Bush administration is supporting the terrorists.
Jeez-o-pete, isn't it time to give this a rest? Every disputed ballot in Florida was counted twice, by machine. Only when Democrats asked for a do-over, (No Jew would EVER vote for Pat Buchanan -- L. Tribe if I remember right), and for individuals to divine the meaning of a dimpled chad (undervote? overvote? just right vote?), did ballot counting approach theater of the absurd. If the Democrats had had their way, we would still be trying to set chad dimpling standards. And while I'm sure Denny Hastert (next in the line of succession) would have done a creditable job as President, I was glad there was someone to replace Clinton and Gore when their terms ended on Inauguration Day.
1. Because so many people don't know, or worse, deny the truth.
2. Because those who benefited from these crimes are still in office.
That depends at least in part on the meaning of the word "count." There were many ballots that the machines rejected as not countable, but were easily readable to humans. Because of Republican terrorist riots in the courthouses of Florida, those ballots were never counted.
This is a Republican talking point, but the fact remains that there were many ballots that were never counted because the machines rejected them, that human readers could easily read.
The topic here is terrorism. My statement remains unrebutted. Republican members of Congress and aides to Republican members of Congress rioted and caused terror among innocent American citizens in the courthouses of Florida in November 2000.
Quelle-effin'-horreur, mes vieux.
impunityimmunity doctrine itself imposes a high threshhold. Indeed, more than two decades ago Justice Byron White, in an opinion joined by six other members of the Supreme Court, wrote, "[a]s the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). If John Yoo contends that qualified immunity is insufficient here, one wonders which of these two categories he fancies himself as belonging to.The doctrine of immunity from suit for damages itself is cut from whole cloth--an egregious example of rank judicial activism, albeit one not often cited by the right-wing bloviators who are fondest of that phrase. The language of 42 U.S.C. § 1983 admits no immunities. (Yoo was sued under the Bivens doctrine applicable to federal officials, rather than under § 1983, but the same immunities have been held to apply.) A series of Supreme Court decisions, beginning with Bradley v. Fisher, 80 U.S. 335 (1872), held that officials, such as judges, who were immune from suit at common law ordinarily enjoy immunity from suit under federal civil rights laws. These decisions do not discuss the principle, recognized most famously in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), that there is no federal general common law.
I suspect that Yoo and his former Bush Administration colleagues are far more worried about submitting to discovery than they are about being mulcted in damages.
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A motion to dismiss is just about the cheapest thing a defendant can do in a lawsuit. Are you saying even filing a single motion is such a huge burden on people we need to ban a whole class of potentially meritorious claims, or institute some sort of pre-suit review? This is a libertarian blog. Doesn't anyone around here imagine themselves possibly suing the government at some point?
By his very logic, shouldn't Kazinski be considered a possible domestic terrorism suspect due to the pronunciation of his name?
Actually its a nickname, I just couldn't spell Kaczynski on a repeatable basis, so I simplified it.
Read it and weep: Florida recount study: Bush still wins
Not Eyesay and Kazinski: There are studies that point the other way. The CNN article does not rebut my point that Republican members of Congress and their aides rioted in Florida Courthouses, putting American citizens in fear of their lives.
One would think that people on a site like this would have a little more appreciation for the concept of precedent. If this thread is any indication, that thought would be way off.
CA may indeed do so, however the link you provided didn't even touch on the subject. Are you deliberately trying to mislead, or just incapable of understanding the link you submitted?
People OUGHT to be thinking very seriously about the personal consequences of their actions while in government, and the threat of criminal sanctions does not appear to be sufficient.
Recourse by those injured to the public pocketbook is merely taxpayers providing a blank check to misfeasance and malfeasance.
Incidentally, Padilla has the worst possible case of any detainee against Yoo. The only reason why this case has been filed at all is that all the other detainees with better cases are denied a right to sue under the MCA. Under the second paragraph after the "Habeas" piece everyone talks about, there is also "no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." So Padilla, the only US Citizen who was detained, is the only remaining game in town.
Isn't Yoo tacitly admitting here that he was responsible for violating Padilla's clearly established constitutional rights?"
Of course not.
Sigh.
But he properly compares himself to a member of the corrupt Nixon administration.
getting back to the main point, why are our enemies, in a time of war, getting access to our courts? why didn't we extend the same grace to nazis back in the '40's. until someone can explain why, I have to agree that terror supporter is an apt term.
In the spirit of your own post, are you just stupid or are you incapable of reading? From the link: "The Foreseeable Third-Party Approach (FTP) is the third judicially developed approach; it expands the liability to third parties further than the Restatement. Currently four states have adopted this approach: New Jersey, Wisconsin, California, and Mississippi." Emphasis added.
Posting etiquette aside, what difference would it make if I had been wrong about CA? This suit isn't controlled by CA law anyway. The point is that third-party liability for professionals is a recognized theory, though not everyone adopts it. If you're not a lawyer, merely a shortstop, I guess I understand the confusion, but in that case a little humility might be in order before you spout off. If you did pick up a law degree after your playing days ended, well....
Cleaning our weapons, not our diapers.
And if HRC or Obama wins this year, are you also willing to strip away the historical immunity their Administrations' lawyers give? Or does this ability to sue only apply to Republican Administrations?
tell me, when I read the posters from back in the '40's, warning people to be careful and to watch what they say, were they being bedwetters too?
You're asking why Padilla has access to the courts?
What war are you talking about?
In the wake of 9/11, not a few people said we must 'never forget'. It seemed obvious to me at the time that this was doomed to fail... of course we will forget, or at least more immediate concerns will push for a larger share of attention.
But now we see the opposite extreme... the idea that not only must we 'forget', but mere mention of 9/11 automatically disqualifies you from being taken seriously.
And why are some so anxious that 9/11 be barred from public debate? The answer is that for them, it is an inconvenient truth.
Might I humbly suggest that people seeking to prevent 9/11 discussion be themselves not taken seriously?
Huh? If one of PD's clients gets the death penalty, a claim that the conviction was due to the "ineffective assistance of counsel" will surely be made. PD's acts and omissions will be thoroughly scrutinized by appellate courts.
What happens to the system when a prosecutor suddenly expects to be deposed for 1-2 days on that percentage of the cases he worked on?
Nick
the above commenter is also right on 9/11-apparently you can't even "invoke" it when Padilla was part of the same organization and attempting to carry out further attacks. to them, you have to remain historically ignorant, with history beginning each morning when you wake up. 9/11 apparently has become something of significance only to bedwetters-otherwise, it should be forgotten, even though the same organizations and its ideological allies are still out there and have a significant following globally. the non-bedwetter, like George C. Scott in Patton, jumped out of the window and was trying to shoot down low flying planes with his pearl handled revolvers, on the afternoon of 9/11.
My hypothetical had to do with third party standing. I am fully aware that his client can raise claims of ineffective assistance of counsel. That is not the issue.
What I was asking is whether a third party should have standing to sue Public Defender for advice he gave a client. For example, if Public Defender gave his client advice on what to wear or say at a bail hearing, leading to a bail reduction, and his client then seriously hurt someone on bail, should the injurted person have standing to sue Public Defender for the legal advice he gave his client?
I think not--and I hope Public Defender agrees. That, however, was my analogy. I am sorry if I was not clearer when I made it.
Really? Strange that the federal government didn't actually charge him with such a thing.
He was convicted of wanting to kill unnamed people in an unnamed place at an unnamed time in the future. But the unnamed place was not the United States, contrary to your 12:07 post.
Padilla is an American citizen who was arrested on American soil. The constitution could not be clearer about what happens in such an instance:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."
Habeas Corpus was never suspended so Padilla had every right to a speedy trial in a public, civilian courtroom.
The U.S. has a long history of putting those accused of waging war against the U.S. or adhering to this country's enemies on trial in open court.
as to the trial issue, please name me the civil lawsuits brought by the enemy against government actors in a time of war in the past-you are surely going to be able to come up with scores of cases from WWII, won't you? let me hear them.
I have to say there is no equivalence between Yoo and Padilla-one wanted to kill as many americans as possible, one wanted to protect them. kind of like trying to paint an equivalence between Truman and the wartime leaders of Japan-they both might have done things wrong at times, how can we possibly be judgmental. I realize, of course, that such a comparison deals with history and is off limits in this debate.
Then such term does not apply to me.
Oren did not ask if there was equivalence. Yoo's legal memorandum on a point of law did not purport to protect Americans, only his self-serving op-ed columns make that suggestion.
Given that you wrote, above, "the national socialist movement had its inroads in only one country," I wouldn't be lecturaing other people about the proper uses of history.
I'm not a fan of this lawsuit, but IMHO, Yoo isn't making himself look very good in these pieces.
Bad analogy. PD is in no way involved with that appellate review: That's for appellate counsel to hash out.
A better analogy: What if PD secured acquittal on an attempted murder charge, and the defendant then went out and successfully committed the murder. Should he be subject to a wrongful death suit by the victim's family?
So: Should PD be made to stand trial on those claims? Why?
nothing, of course, changes the simple fact that we weren't allowing Himmler to sue Roosevelt or Eisenhower in our civil courts in the '40's. Now, it's apparently considered fashionable, even progressive, to represent our enemy.
Not at all. It refers to those who are always telling us that we should be so afraid of the boogeyman, we should give up all our inalienable rights. Those who never read Patrick Henry or Franklin Roosevelt, those who believe that we gain in freedom when we repress.
Roosevelt is long gone but I think he might offer an opinion on national survival that is not to your liking-look at what he did and the ruthlessness with which he did it. of course, he came from a more backward time.
Beyond Germany, the governments of Italy and Spain were fascist, and they had Japan as an explicit ally (and for that matter, at the beginning of WWII, Russia had agreed to stay out of the fight against the fascist powers). That strikes me as a more formidable problem than Al Qaida has been.
The point, however, was not to argue about which which was worse, but rather to make the obvious point that other countries besides Germany had fascist governments. I mean seriously, you did know that, right?
And as to FDR and interring the Japanese, I think we all pretty much agree now that it was both a bad idea and not at all necessary for the successful prosecution of WWII. So I don't think that example helps you in this debate.
OTOH, when an unsuccessful defendant sued his public defender, alleging that the PD had conspired with various state officials, including the trial and appellate court judges and the former Attorney General, to secure the (civil) plaintiff's conviction, the Supreme Court opined in Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820; 81 L.Ed.2d 758 (1984), that the allegations of conspiracy were sufficient to allege action under color of law, and the defendant public defender was not entitled to immunity from suit.
If I advised a client that it was OK for him to go out and beat his wife because I thought I saw a loophole in the statute, and then advised him as to the best way to go about it to minimize his legal risk, then yes, I should be subject to suit by the wife. If Yoo advised federal agents that it was OK to torture and detain Padilla in clear violation of the law, then yes, he should be subject to suit.
But perhaps a better example is Lynne Stewart. As her case demonstrates, our status as lawyers does not insulate us from charges of illegal behavior. Like Yoo, Stewart was charged with using her status as a lawyer to help a client commit an illegal act. Stewart tried Yoo's "I'm just a lawyer" defense, and she's now in federal prison.
What Yoo is charged with is a lot much more like what Stewart is did than your example of advising a client what to wear during a bond hearing. And if the law is as clear as Yoo says it is, Yoo should be able to obtain a quick dismissal and an easy win on any appeal, all with the DOJ's help.
In the end, it's too bad that a civil suit is the most we can hope for. In a just world, Yoo would be spending some quality time with his moral cohort Lynne Stewart.
Not "strip away historical immunity," no, but I wouldn't extend historical immunity in the way Yoo wants to. If lawyers for HRC or Obama authorize torture, they too should be sued. And they, too, should lose.
Let's flip this around, would you want to give HRC the power to declare someone an enemy of the state, torture him, and imprison him forever? Given all that Bush, Cheney, Yoo, and company have done to empower Al Qaida and Iran since 9/11, you might not like who could be at the top of the list of people to detain.
Please tell me, Public Defender, exactly how many Administration critics have been detained because they have denounced the Bush Administration. Is George Soros in some prison I do not know about? Has Nancy Pelosi been spirited away without us being told? What about Markos Moulitsas (of Daily Kos fame)? Is he in Gitmo? or prison? or anywhere else uncomfortable?
You really do a disservice to your argument by engaging in hysterics.
As I am sure you know, Lynne Stewart was not prosecuted for the advice she gave her clients. She was prosecuted for passing along messages from her client to his followers--and any first year lawyer can tell you that doing an act in furtherance of a conspiracy makes you a part of the conspiracy.
Now, please tell me what is the overt act you claim Yoo did that would make him guilty of conspiracy? Oh, that's right, his "crime" is giving legal advice to his client that you personally disagree with.
more seriously, tell us of the case where an enemy of our country, detained in time of war, has brought a civil suit against our government or one of its agents-I am still waiting for the scores of cases in prior wars where this occurred.
9/11 cannot be a salve to be save otherwise failed arguments that have nothing to do with 9/11, anymore than the Holocaust can be used to justify every single act Israel does in the name of self defense. Just like Israel must (and can) defend its actions based on rational, legitimate causes, this administration - and its allies - cannot simply state 9/11 to prevent an honest discussion on whether our actions are actually legitimate.
(starts at the ninth paragraph)
The FBI agents and the CIA agents who put their neck on the line, every day, for our country only get qualified immunity. Why should Yoo get treated better than they are? He doesn't address this point.
Regarding the various analogies, the closest case historically to this lawsuit may be the Nuremberg criminal prosecutions of certain Nazi lawyers and judges who were charged with giving legal sanction to conduct that they knew was illegal under international law.
I am not saying that what Yoo did equates to what the Nazis did, but if you assume that he (1) knowingly provided erroneous legal advice (2) that caused Padilla to be tortured, in violation of US and international law, why should he be immune from civil liability?
Now, if you agree that, in this scenario, Yoo could be sued, why is it so problematic if, instead of "knowingly" providing erroneous legal advice, Yoo instead provided erroneous legal advice that was contrary to well-established US law and which any objectively reasonable lawyer would know was wrong? I think that is probably the qualified immunity standard that Yoo is now complaining is inadequate (haven't researched this in a while, so I could be off slightly in the formulation).
Third, the claim about "attorneys fees" is bogus. Yoo can get his attorneys for free, from the good old USA taxpayer.
I think that is a meaningless talking point for Yoo, to try to stir up sympathy for his position, by making this situation analogous to a frivolous lawsuit that a business might have to defend.
(By the way, the Nazi lawyers were not only NOT immune from civil liability, they were subject to criminal liability.)
9/11 cannot be a salve to be save otherwise failed arguments that have nothing to do with 9/11
You are right that 9/11 shouldn't be used as an excuse to put cold medicine behind the counter in pharmacies, but that is not the case here. Yoo's memo was written specifically about interrogating 9/11 conspirators, so it was entirely appropriate to invoke 9/11 in justifying the memo.
Keep trying.
I'm fairly skeptical of this lawsuit, but I think we need to be fair here. In standard conspiracy law, civil or criminal, it's not ne