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I’m a little late in getting to it, but in the Wall Street Journal today our own John Yoo, a) explains why Ninth Circuit was right to throw out the case against him the day before yesterday, and, b) makes clear, toward the end, that what the legal wrangling over all those years shows is that the Obama administration is committed to a policy that will undermine our security, not enhance it.
Oh, wait, there’s also a point c): In the last line of the second paragraph, John gets off the line of the week.
Suppose a future president—let’s call him Mitt Romney—declares that last fall’s killing of al Qaeda leader (and American citizen) Anwar al-Awlaki amounted to an “assassination.” He orders a special prosecutor to pursue everyone from the drone pilot who pulled the trigger all the way to Defense Secretary Leon Panetta and CIA Director David Petraeus. The murder investigation triggers lawsuits by Awlaki’s family, litigated gratis by law schools, human-rights groups and their legal allies, whose leaders the president later rewards with plum jobs.
Reverse the political polarities, and you have the counterterrorism policies of President Barack Obama. And that is the past—and the future—that I hope our nation escaped this week with the Ninth Circuit Court of Appeals decision in Padilla v. Yoo. That Yoo is me.
President Bush declared Padilla an enemy combatant in June 2002 in part on my legal advice. After a federal appeals court rejected Padilla’s plea for release, the government transferred him to Miami for trial. A jury convicted him of conspiring to commit murder, kidnapping and maiming, and of providing material support to terrorists. An appeals court recently reopened his case—because it found his 17-year sentence too short.
Nevertheless, a San Francisco trial judge felt that Padilla should have the right to sue me for my legal advice that the Constitution allows the military detention of Americans who join al Qaeda. It would have saved years of worrying about the litigation and potentially millions of dollars in legal fees for me to give in. Indeed, an Obama official even called to ask that I not appeal. In what must be Attorney General Eric Holder’s idea of subtlety, the Justice Department then withdrew as my legal counsel.
Only the intervention of Miguel Estrada, one of the nation’s finest criminal lawyers, gave me the freedom to fight on against the frivolous lawsuit, conducted for free by my alma mater Yale Law School. (Yale’s dean when the suit was filed in January 2008, Harold Koh, now serves as top lawyer for the State Department, where he has blessed the use of drones to kill Americans who have joined al Qaeda.)
President Obama declared the CIA’s interrogation methods to be “torture” before the courts or his own Justice Department had delivered a considered opinion. He launched an independent counsel to hound CIA agents, even though career prosecutors had already looked into claims of abuse and found no charges appropriate. He tried to close Guantanamo Bay without any real alternative, stalled special military commissions established by President Bush and ratified by Congress, and has relied on drones to kill rather than capture al Qaeda leaders for their intelligence.
The men and women fighting this war will understandably respond by becoming risk-averse or paralyzed by uncertainty—the very attitudes that allowed the 9/11 attacks to succeed. CIA agents are taking out group insurance against litigation. Some drone pilots are not re-enlisting because they have little confidence in this administration to defend them. Some special forces officers worry that the president will reveal sensitive operational information, or blow hard-to-come-by intelligence, just to gain a temporary partisan advantage in an election.
Worrying about future lawsuits will distort official decision-making, which should balance the costs and benefits to the national interest and not worry about personal liability. No one will ever sue a government official for doing nothing, even as dangers loom.