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Random Thought on the Lawsuit Against John Yoo:

The problem with a suit like this is that it costs the plaintiff nothing, because the Yale Law School clinic is paying the bill, and would cost a typical defendant (Yoo says that he has friends who will defend him for free) lots to defend. Even if the clinic loses, and badly, it gets publicity for the charges leveled at the defendant, free p.r. for the clinic, a fundraising schtick, and an intimidation tactic to use against future government officials who disagree with its policy positions. Even if the typical defendant wins, he gets stuck with a legal bill, hundreds of hours of wasted time and energy, and a stain on his reputation from charges that are effectively exempt from libel law because they are part of a legal complaint.

In other words, it well pays the Yale clinic and likeminded activists to file lawsuits like this even if they are pretty sure that they have no chance of winning. It makes one wish for loser-pays, or at least the old version of Rule 11.

guy in the veal calf office (mail) (www):
According to this article, the DOJ would defend Yoo, so he doesn't need friends or fees.
1.16.2008 7:47pm
wm13:
And, of course, conservatives can't take the time to sue Janet Reno, because, as P.J. O'Rourke observed, we have jobs.

On the bright side, we have jobs.
1.16.2008 8:02pm
Gregory Conen (mail):
This is, of course, a problem for many frivolous lawsuits. And there is probably a better system for dealing with it.

But this particular subset of that problem does not concern me too much. I doubt that the Yale law clinic would be providing free service if the circumstances were otherwise, the same circumstances that provide Yoo with legal support (high-profile case, etc).

Unless this opens a slippery slope to much more (factually) tenuous suits against government officials, other kinds of frivelous lawsuits bother me more.
1.16.2008 8:05pm
Anderson (mail):
I think that anyone sued for official acts at OLC should definitely have his tab picked up by the feds.

And what does "no chance of winning" mean? The law on this subject is too sketchy to be able to conclude beforehand that the suit can only be dismissed.
1.16.2008 8:06pm
DavidBernstein (mail):
Just to be clear, I don't know enough about this area of law to know whether the lawsuit is legally frivolous or not. My point is that even if it IS legally frivolous, the clinic might still very well want to file it. And I agree, this is not a problem unique to this contex.
1.16.2008 8:11pm
CrazyTrain (mail):
The problem with a suit like this is that it costs the plaintiff nothing,

. . . with the exception of several years of his life in solitary confinement and without the opportunity to be heard by any court anywhere in the world. Yes, costs nothing. Some libertarian!
1.16.2008 8:11pm
MarkField (mail):
I would think conservatives ought to be thrilled that liberal legal clinics are wasting time and resources on suits that have no chance of winning.
1.16.2008 8:11pm
Kovarsky (mail):
clinically prosecuted cases also solve collective action problems by pursuing cases that are not class-certifiable but that no economically rational person would pursue.
1.16.2008 8:19pm
Cornellian (mail):
It makes one wish for loser-pays

There are countless civil lawsuits in this country that make one wish for loser-pays but that never get publicity because they don't involve anyone famous or any high profile issues. Other common law countries do have loser-pays rules to deter frivolous lawsuits and I see no reason why we should not have such a rule as well.
1.16.2008 8:42pm
SenatorX (mail):
Loser-pays seems reasonable to me. Can someone explain to a non-law person why we don't currently have that rule?

The recent case that comes to mind is when that judge(ex-judge?) sued those dry cleaners for millions because of his pants. I think I read they had to shut down business and racked up over 100k in expenses defending themselves(though in this case I think their expenses got covered by donations for the most part).
1.16.2008 8:48pm
Mario Rizzo (www):
It interesting the way in which John Yoo turns his own legal problems into the big issue of whether America will be able to fight successfully the so-called war on terror and save Western civilization. Sometimes this mental tendency is called grandiosity or megalomania. But whatever it is, I cannot feel sympathetic to such people. This is quite apart from any of the legal issues involved.
1.16.2008 8:51pm
frankcross (mail):
How is this different from any public interest litigation? Including property rights actions by groups like the Pacific Legal Foundation.
1.16.2008 8:52pm
EH (mail):
Mr. Bernstein,

You focus on the publicity benefitting Yale Law Clinic to the exclusion (or ignorance) of anything else. There is certainly a risk that a suit deemed frivolous will affect their reputation negatively, and this is a real cost.
1.16.2008 8:59pm
DavidBernstein (mail):
Frank, it's not, inherently.
1.16.2008 9:03pm
Richard Aubrey (mail):
EH.
If it is obviously frivolous, so what? The school has more money, anyway.
And their rep is not for filing frivolous suits, but for harassing the kind of people all RightThinking People think should be harassed.
In some circles, that's a good thing.
1.16.2008 9:12pm
Anderson (mail):
SenatorX, "loser pays" has been disfavored for several reasons. Off the top of my head, (1) it discourages some meritorious suits b/c risk-averse people won't take the chance, (2) it often has disproportionate effects -- many if not most defendants can and do purchase liability insurance and/or have a bankroll that cushions the blow, whereas plaintiffs are often poor or middlin', and (3) plaintiffs can lose a suit simply b/c they can't prove their case, without necessarily being wrong in their allegations -- in which case it seems unjust to penalize them.

There are good arguments either way, I cheerfully concede.
1.16.2008 9:13pm
Bruce Hayden (mail) (www):
. . . with the exception of several years of his life in solitary confinement and without the opportunity to be heard by any court anywhere in the world. Yes, costs nothing. Some libertarian!
Except that if he wins, he is still stuck in solitary confinement, or likely more accurately, protective custody at one of the SuperMax prisons.

The protective custody is for his protection. I was talking the other day with someone who has spent his career at the U.S. Bureau of Prisons (or whatever it is currently called). While not talking about Padilla in particular, he pointed out that there are several categories of inmates who automatically get protective custody, and one of them is terrorists and traitors. He pointed out that federal prisoners are, on average, quite patriotic, and the life span of someone like Padilla in general population would be fairly short.
1.16.2008 9:21pm
Gregory Conen (mail):
I think a simple loser pays system might not be preferable, for a number of reasons. I would prefer a system where fees are awarded only if the case clearly falls one way or another. When the proper judgment is somewhat in doubt (the case is proven by preponderance of the evidence, but not clear and convincing evidence, perhaps), no fees should be awarded. A similar balance can presumably be done for points of law. This should still discourage frivolous suits, but not greatly increase the burden of filing a potentially meritorious. Also, there should be safeguards against wealthy parties inflating their expenses in order to intimidate their less wealthy opponents.
1.16.2008 10:10pm
Borat (mail):
They just want a declaratory judgment that invalidates the legal force of the memos, so they can't be relied on. They don't care about Yoo. They just want the declaration, even if the case is dismissed.
1.16.2008 10:11pm
vicneo (mail):
<i>SenatorX, "loser pays" has been disfavored for several reasons. Off the top of my head, (1) it discourages some meritorious suits b/c risk-averse people won't take the chance, (2) it often has disproportionate effects -- many if not most defendants can and do purchase liability insurance and/or have a bankroll that cushions the blow, whereas plaintiffs are often poor or middlin', and (3) plaintiffs can lose a suit simply b/c they can't prove their case, without necessarily being wrong in their allegations -- in which case it seems unjust to penalize them. </i>

I think it should be losing plintiffs attorney pays. takes away all the arguments about the poor plaintiff. the plaintiffs may not have deep pockets but the attoprneys do. and they collect 33-40% with the only thing at risk is really their seat equity. let them put something more substantial at risk.
1.16.2008 10:16pm
Jeepers Dude (mail):
As someone else on some other site on these here internets once remarked in response to a description of John Yoo as a professor, he's the modern embodiment of the banality of evil. The mass incarceration, persecution, and execution of innocents does not occur without people holding a worldview akin to his of "just providing legal advice" smoothing the path.

"intimidation tactic to use against future government officials who disagree with its policy positions"

You're right, this suit is just like suing Prof. Yoo because he proposed less funding for Head Start so that No Child Left Behind could receive increased funding.

Feh.
1.16.2008 10:19pm
Alaska:
This state has a 'loser pays' rule. It is designed to apply even in situations where there might not be a clear winner. As I understand matters (I practice pretty much criminal law exclusively, but I've learned a few things about civil procedure), before trial the defense and maybe the plaintiff will file an 'offer of judgment'. This tells the court how much one party believes the case is worth. So, if the defense files an offer of judgment for $50K and the jury returns a verdict of $25K, the plaintiff would have to pay loser fees because the actual verdict was less than the offer of judgment.

It is a common bargaining chip for appeals - one party agrees to forgo an appeal if the award for attorney fees is dropped. It does not apply in criminal cases, but it does apply in public interest litigation. At one point, some parties sought to challenge that, but it was ruled unconstitutional on state constitution grounds, if I remember correctly.

In public interest cases, there are some guidelines about what constitutes a 'successful' litigant. Generally, if you win on some of the merits, you can be considered successful. At that point, the court will hold a hearing to determine what the legal fees are in actuality and what portion of those fees the loser will be required to pay. I have never done one of those hearings so I really can't comment one way about them.

From what I see, it would probably prevent cases or suits like this, but this rule also creates situations one or another party does not like. There is no perfect solution, but it is a start.
1.16.2008 10:51pm
JonC:

. . . with the exception of several years of his life in solitary confinement and without the opportunity to be heard by any court anywhere in the world.


Far from suffering an inability to have his case heard by "any court anywhere in the world," Mr. Padilla's case in fact went up and down the U.S. federal appellate ladder twice, reaching the Supreme Court two times before he ultimately was tried and convicted after presenting his defense before a civilian trial court, the judgment of which I can only assume he is appealing to still another court.
1.16.2008 11:09pm
Dave Hardy (mail) (www):
According to this article, the DOJ would defend Yoo, so he doesn't need friends or fees.

But he may need some really attorneys who will defend his interests.

As to "loser pay" arguments ... Those are easy to make in the rather unusual case where a really stupid case is bought. In the more typical one -- few clients other than banks and insurance companies have the bucks to pay hourly. Conversely, no one but a fool or newbie takes a case where you have to invest tens of thousands of dollars of your time, while paying the rent and the secretary, and at best get paid 1-2-3 years from now, and ... have anything but a very good shot at recovery.

On the complex cases around here, medical malpractice, I'm told that even if winning looks 100% sure, if the damages aren't half a million, forget about it.

Sure, some group like this, a law school place that has volunteer help and salaries paid, can afford to file a BS suit in hopes of publicity and donors. That calls for ... imaginative applicatons ... of Rule 11.
1.16.2008 11:15pm
Eli Rabett (www):

Just to be clear, I don't know enough about this area of law to know whether the lawsuit is legally frivolous or not. My point is that even if it IS legally frivolous, the clinic might still very well want to file it. And I agree, this is not a problem unique to this context.

Right and you wrote this with a straight face. You have really mastered implausible deniability
1.17.2008 12:18am
Bruce:
Even if the clinic loses, and badly, it gets publicity for the charges leveled at the defendant, free p.r. for the clinic, a fundraising schtick, and an intimidation tactic to use against future government officials who disagree with its policy positions.

"Give us more money -- we blow it on loser cases that go nowhere!" Now what will those Yale fundraising geniuses think of next?
1.17.2008 1:06am
Public_Defender (mail):

You're right, this suit is just like suing Prof. Yoo because he proposed less funding for Head Start so that No Child Left Behind could receive increased funding.


No, this suit is more like suing Yoo because he authorized torturing the children who didn't score high enough on their NCLB tests.
1.17.2008 5:08am
Public_Defender (mail):

I think it should be losing plintiffs attorney pays. takes away all the arguments about the poor plaintiff. the plaintiffs may not have deep pockets but the attoprneys do.


This is a myth. John Edwards is the exception, not the rule. Most plaintiff's lawyers are middle class, if that. Few "have deep pockets."
1.17.2008 5:39am
Philistine (mail):
For frivolous suits, there generally are "loser pays" laws.

They just aren't aggressively pursued in most instances for a number of reasons.
1.17.2008 6:47am
Public_Defender (mail):
Yoo's response to the lawsuit undermines the policy he was defending. By conflating using the term "lawfare" to conflate the filing a lawsuit to enforce the constitution with Taliban military action, Yoo undermines his argument that we can trust the government to distinguish between terrorists and political opponents of the government, or worse, totally innocent people.

Yoo and the Bushies ask us to merely trust them that everyone they designate a terrorist really is a terrorist. His defense against the lawsuit demonstrates pretty conclusively that any such trust would be gravely misplaced.
1.17.2008 6:57am
DC:
He is sued in his individual capacity only (according to the complaint I found by googling), so Yoo personally has no power now to give the plaintiff anything but monetary relief. (Contrast an official-capacity suit, which would be brought against the official holding the office now who might have formal power to say, write another memo.)

I almost think Yoo should reply to the lawsuit with a crisp one dollar bill (the total amount of damages sought), wrapped in a handwritten note congratulating the clinic for encouraging more Yale alums to enter government service. He might technically need to also respond to the declaratory claim (I doubt there's jurisdiction to sue a former President merely for a declaration that one of his policies was a bad idea; former official means NOT an official.)
1.17.2008 7:09am
Ralph Phelan (mail):
For frivolous suits, there generally are "loser pays" laws.

They just aren't aggressively pursued in most instances for a number of reasons.

The fact that the folks who filed this suit weren't deterred by fear of losing their licenses for being idiots is proof of that!
1.17.2008 8:03am
PersonFromPorlock:
I can't believe I'm the first to note that DB's critique of the Yale suit exactly describes the situation faced by almost all criminal defendants. Substitute 'Nifong' for 'Yale' and you've got it.

Anyone want to discuss 'state pays for a successful defense?'
1.17.2008 8:57am
Ralph Phelan (mail):
I can't believe I'm the first to note that DB's critique of the Yale suit exactly describes the situation faced by almost all criminal defendants. Substitute 'Nifong' for 'Yale' and you've got it.

Anyone want to discuss 'state pays for a successful defense?'

I'd like to see such a thing, or at the very least far more frequent and severe punishment for misconduct than is currently the case.

But the fact that in practice prosecutors have the power to wreck lives with impunity is certainly no argument in favor of extending that power to the Yale Law School clinic too.
1.17.2008 9:12am
neurodoc:
I think it should be losing plintiffs attorney pays.
Your bias shows, since your only concern seems to be discouragement of non-meritorious lawsuits prosecuted by attorneys whose fee is contingency upon a successful outcome for their client. Deep pocketed defendants, or defendants with deep-pocketed insurors, especially med mal companies, are not above running up the costs that plaintiffs with self-evidently meritorious cases must bear in order to "encourage" them to settle for less because they can't afford to wage too expensive a war and to discourage others who might pursue equally or even more meritorious claims but for the costs to litigate. (And plaintiffs may owe their attorneys nothing in fees if they
do not prevail, but still be responsibe for expenses, which can be quite substantial.)
1.17.2008 9:57am
neurodoc:
federal prisoners are, on average, quite patriotic, and the life span of someone like Padilla in general population would be fairly short
Sex offenders do not fare well in prison either. (The pedophile priest John Geoghan was murdered by a fellow prisoner.) I don't think we can infer that federal or state prisoners are more offended by sex crimes or more outraged by betrayal of our country than the rest of us. Maybe they just think better of themselves or want approbation (and attention) for enforcing a harsher sentence than the court handed down. And maybe the crimes they commit against other inmates is as much a reflection of sociopathy as the crimes that sent them to prison in the first place.
1.17.2008 10:04am
Dan Weber (www):
Speaking of Nifong, he's just declared bankruptcy, and named a who's who of the lacrosse case as his creditors.

So I guess "loser pays" worked in that situation. :)
1.17.2008 10:26am
Tony Tutins (mail):
"Loser pays" makes sense when both parties have similar resources, not when one party is a penniless prisoner. How about this: if Padilla loses, he pays half his cigarette ration for a year to Yoo?
1.17.2008 10:38am
Tony Tutins (mail):

an intimidation tactic to use against future government officials who disagree with its policy positions

How easily intimidated can these officials be, who say that the Constitution authorizes the President to torture, and who redefines torture to be merely “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” I think if Padilla wins, the court should require Yoo to be waterboarded.
1.17.2008 10:42am
cjwynes (mail):
PersonFromPorlock, the state DOES pay for criminals' legal defense, successful or unsuccessful, through the public defender system.

And in addition to the ethical rules that most prosecutors have no trouble following, there are also political solutions to the problem of a grandstanding, power-mad prosecutor. I think the system works pretty well, there are in reality very few genuinely innocent people in prison, we don't need any additional dis-incentives in the criminal system.

As for this Yale-financed lawsuit against Yoo, it continues to amaze me how willing academia is to alienate 90% of the country to garner praise from some elitist minority of people who hate the current presidential administration so much that they'll embrace ANYTHING and ANYBODY opposed to it. They may be able to stay in business, because alot of that elitist minority has inherited wealth to throw away on this sort of thing, but one day they'll wake up and find out that nobody really cares what academia thinks anymore.
1.17.2008 10:57am
neurodoc:
Question 1: How does today's Rule 11 differ from Rule 11 in the past? Did Rule 11 have more teeth then than now? If so, that is more teeth in the past, what brought about a more lenient rule? Were lawyers getting banged unfairly by Rule 11? Much difference Rule 11 in federal courts versus state ones?

Question 2: How many innocents do you guesstimate may have been wrongly tagged as terrorists? ("Yoo and the Bushies ask us to merely trust them that everyone they designate a terrorist really is a terrorist.") The question is intended for those who won't answer "how are we to know," "one would be too many," etc. Would it be Lenin-esque to ask what would be an acceptable in terms of "false positives" and "false negatives" when making the terrorist call?
1.17.2008 10:58am
MDJD2B (mail):
<blockquote>
I think it should be losing plintiffs attorney pays. takes away all the arguments about the poor plaintiff. the plaintiffs may not have deep pockets but the attoprneys do. and they collect 33-40% with the only thing at risk is really their seat equity. let them put something more substantial at risk.
</blockquote>

This still discourages suits-- lawyers may not take a meritorious case that they might not win.
1.17.2008 10:59am
MDJD2B (mail):

You're right, this suit is just like suing Prof. Yoo because he proposed less funding for Head Start so that No Child Left Behind could receive increased funding.

So what rule do we institute to distinguish suits like this from suits on NCLB? How about: "If it offends Jeepers Dude's moral sense, then the suit is justiciable."
1.17.2008 11:07am
Ralph Phelan (mail):
This still discourages suits-- lawyers may not take a meritorious case that they might not win.
As a non-lawyer, I don't see a world in which only obviously-winning lawsuits ever get filed as such a horrible thing.
1.17.2008 11:27am
Mark Field (mail):

How many innocents do you guesstimate may have been wrongly tagged as terrorists?


Well, it is difficult to say, partly because we have no idea of who is held as a "terrorist" in many cases. We do know this, though: over half of those originally sent to Guantanamo ("the worst of the worst", remember?) have been released. Going off memory, roughly half of those there at the time of the Seton Hall study were NOT known to have committed any terrorist act or supported any terrorist group. Then there are the widely publicized cases of a few people with apparently legitimate claims that they were wrongfully "rendered".

Altogether, the facts aren't very helpful to the Administration. Then again, with this Administration, they rarely are.
1.17.2008 11:35am
Brian G (mail) (www):
The attitudes in some of these comments towards Mr. Yoo is, as not unexpected, right down party lines. Sad, because if this can proceed, we all know what will happen next, some Democrat will be sued for the same thing.

If the conservative right had thought of this first, they would have sued Jamie Gorelick for that memo that I would argue played quite a role in hampering domestic investigations of potential terrorists.
1.17.2008 12:12pm
eddie (mail):
First, I suppose everyone suggesting "unsuccessful plaintiff pays" are truly dismissive of the ability of our judicial system to discriminate early on in any suit whether there is merit or not. This is merely a form of the "activist" judge argument, which really is about results and not the facts or law. Perhaps all of those who agree and support the memos written by Professor Yoo simply think that any criticism or attack on them (let alone a successful legal assault thereon) is baseless.

No one seems to want to discuss the substantial issues at stake here, viz. do we abandon the traditions of a law that have served us well for decades because of some amorphous enemy that has been designated as "the terrorists." If there were ever a slippery slope that any one who really cares about the law should be concerned about, the one created by Professor Yoo, namely that simply by designation one loses all rights, should be far more scary than anything that any terrorist could do.
1.17.2008 1:10pm
Ralph Phelan (mail):
First, I suppose everyone suggesting "unsuccessful plaintiff pays" are truly dismissive of the ability of our judicial system to discriminate early on in any suit whether there is merit or not.

Often as a result of direct experience. The fact that this case got as far as it has is only one more example.
1.17.2008 1:44pm
neurodoc:
"(S)ome amorphous enemy that has been designated as 'the terrorists'" sounds to my ears dismissive, implying it is mostly hype and ultimately not too consequential. But a significant part of the problem is that they are, if you will, "amorphous" (don't wear uniforms, don't have a formal command structure, no home address, etc.) I trust that however many or few you think there are who are rightly labeled "terrorists," and however much or little you think of the approach that has been taken toward them, you don't discount the magnitude of the threat they pose us and the rest of Civilization. (Yes, Civilization.)
1.17.2008 1:44pm
Ralph Phelan (mail):
I don't see how refusing to create a totally novel cause of action with huge unforseen consequences is "abandoning the traditions of a law that have served us well for decades."

The issue here isn't whether the Bush administration's policies are evil and/or criminal, but whether the novel legal theory this suit is based on is a good idea. I believe it is possible to answer the first question "yes" and the second "no."
1.17.2008 1:49pm
ejo:
they do discount the threat-the events of 9/11, later bombings, the assassination of Bhutto, the stated goals of our enemies, none of that matters. you'll probably get bedwetter responses. you'll hear how you have a greater risk of dying from eating a bad pastrami sandwich than you do of dying in a terrorist attack. you know, the same stuff that was being said in the 1930's, right before a war that killed 10's of millions of people.
1.17.2008 2:18pm
PersonFromPorlock:
cjwynes:

PersonFromPorlock, the state DOES pay for criminals' legal defense, successful or unsuccessful, through the public defender system.

I think I'll defer to one of the board's PDs to fisk that. But do you have to be a 'criminal' to get a Public Defender, or can any old defendant play?

And in addition to the ethical rules that most prosecutors have no trouble following, there are also political solutions to the problem of a grandstanding, power-mad prosecutor.

Political solutions are by their nature not available to most individual defendants. L'affaire Nifong ended as it did because many, many people were disgusted by it; a defendant without the resources of the Duke Three would never even come to the public's notice, let alone be able to accomplish a 'political solution.'
1.17.2008 2:57pm
Ralph Phelan (mail):
Political solutions are by their nature not available to most individual defendants. L'affaire Nifong ended as it did because many, many people were disgusted by it; a defendant without the resources of the Duke Three would never even come to the public's notice, let alone be able to accomplish a 'political solution.'

There are some political checks on prosecutors, though in my opinion clearly not enough.
If Yale Law Clinic succeeds with this action, it will have even less check on its actions.

So in addition to prosecutors with the power to wreck lives and little to hold them back, we'll have lawyers for activist groups for every cause imaginable running around with the power to wreck lives and even less to hold them back. In the long run that does not make the world a better place.
1.17.2008 3:14pm
Per Son:
Loser pays. Someone earlier brought up the laundry business lawsuit in DC and the tremendous leagl bill. I'll set you straight. After the victory, the Court awarded fees to the defendants. The Defendants were (too nice in my book) and waived fees when a charity raised the money for them.

There are tools to combat frivolous suits. This proves it.
1.17.2008 4:05pm
Alaska:
To respond to a couple of posts:

Eddie, you question whether we should abandon legal institutions that have served us for some time. As I understand it, 'loser pays' is actually part of the English legal system. Maybe I am incorrect. If so, I would apologize and I imagine that one of the VC readers would be able to provide correction. There are some mechanisms to weed out meritless lawsuits, such as summary judgment motions. It can be very difficult to prevail on these motions, tho. Further, while I do not in any way support Yoo's arguments and suggested policies while he was in OLC, I do not think that this lawsuit is the proper remedy.

Civil rights litigation, as I understand it, has made a long-standing distinction between instances in which the government as a whole has abridged someone's rights and when an individual in the government has stepped out of her role to abridge someone's rights. Examples of the latter would be police brutality cases or Mike Nifong's role in the Duke lacrosse case. In both of those cases, individuals go beyond their job descriptions to become potentially liable individually. Yoo did not do that. Rather, he made legal arguments to advance the position of the White House. I disagree with those arguments and the policies ultimately adopted as a result thereof. But I do not see Yoo as having committed such brutalities or going beyond his role as to warrant individual liability. For that reason, I think that this lawsuit is misguided at best. A 'loser pays' situation could weed out this type of suit without eroding our rights or legal traditions.

On another, unrelated question, PersonFromPorlock wonders if you have to be a 'criminal' to get a public defender. That can vary from state to state, but generally, you are entitled to counsel if 1) the case involves state action affecting 2) a fundamental right, and 3) the individual affected is indigent. As a practical rule, this applies to criminal cases and child in need of aid cases (cases where children are removed from the home by state action for their protection). Cases in which an individual is sued by another person (natural or artificial) as a general rule do not qualify for appointed counsel. Many states have legal aid societies that provide defense for indigent persons in some circumstances, but legal aid is generally a private charitable organization that handles extremely limited types of cases. Cases that would qualify for legal aid generally include family law, housing, and maybe some employment issues. Frequently, legal aid may provide representation even if an individual has no right to representation. So, if legal aid does not have sufficient resources, a lawsuit against the state for failing to provide such would generally be dismissed whereas a lawsuit against the state for failing to provide sufficient public defender resources would more likely be examined on its merits.
1.17.2008 4:31pm
Spitzer:
Check your law Bernstein: Yale sued Yoo under $1983 and RFRA, and they want attorney's fees under Section 1988. It is well-established that losing plaintiffs must pay attorney's fees to the successful defendant in a Section 1988 shiftable claim where the claim is found to be frivolous. No need to screw around with the American Rule here - it's already been done for you.
1.17.2008 5:21pm
PersonFromPorlock:
Alaska:

I guess I could have been clearer; what I was really doing was pimping cjwynes about calling a PD's client a 'criminal' instead of a 'defendant'. That seems to me to show a pretty strong opinion about who gets PDs and how much good PDs do 'em. ;^)
1.17.2008 6:02pm
Gregory Conen (mail):
neurodoc, ejo:
I may not be as utterly terrified as others (guess what, their TERRORists, they want people to be afraid of them). If a small bunch of fanatics are a serious threat to civilization, that doesn't say much for civilization.

A little perspective might help. 9/11 killed about 3,000 people, and it is by far the worst terrorist attack in recent history (in a western democracy). In 2001, about 16,000 people were murdered in the United States by other means, very few of them by terrorists.

The only way terrorists could destroy civilization is if we do it for them. Which is why I (and others) are so concerned about the "need" for "enhanced interrogation", etc. in fighting terrorism. They hate freedom; eroding freedom to prevent terrorism is exactly what they want.

I'm not saying we should ignore terrorism, any more than we should ignore (ordinary) murder. But extreme, dubiously legal, measures are unneeded and counterproductive.
1.17.2008 6:17pm
wfjag:
Spitzer wrote:


Check your law Bernstein: Yale sued Yoo under $1983 and RFRA, and they want attorney's fees under Section 1988.


The Padilla v Yoo Complaint is at www.indybay.org/newsitems/2008/01/08/18471138.php

and at http://portland.indymedia.org/en/2008/01/370796.shtml

or linked through here http://blogs.georgetown.edu/?id=30387

Except for a reference to the RFRA, 42 U.S.C. § 2000bb, in connection with a denial of "free exercise of religion guaranteed under the First Amendment to the U.S. Constitution" it's an attempt at a Bivens suit with no mention of 42 USC 1983. (And, how suit could be filed under 1983, which is for State, not federal, actors denying federal constitutional rights under color of State law, against Yoo that wouldn't be frivilous on its face, is difficult to imagine.).

Is there another Padilla v. Yoo suit that's been filed that alleges 42 USC 1983 as its basis?

And, how is venue proper in California?
1.17.2008 6:48pm
Spitzer:
Good catch - I mistyped 1983 when I was thinking Bivens. In any case, RFRA triggers 1988, so the fundamental comment stands.
1.17.2008 7:00pm
MarkField (mail):

And, how is venue proper in California?


Yoo lives in the NDCA. See 28 USC 1391 (b)(1).
1.17.2008 9:34pm
neurodoc:
Gregory Conen, there are so many things I might say to someone who thinks the murder of 3,000 Americans in the course of a couple of hours by terrorists hijacking passenger planes to fly them in to office buildings is not so shocking when we realize that 16,000 Americans are murdered in the course of a year. (Not a single person has died from the detonation of a nuclear weapon in over 60 years, so why do so many people fret so much over nuclear weapons? Why if in the space of a week or so only 5 or 6 people died when anthrax was used as a bioterror weapon why is so much attention to going to so inconsequential a threat? ...hey, I think I'm getting the hang of this "perspective" thing, and believe I could really be awesome with it.) But then I came to, "They hate freedom; eroding freedom to prevent terrorism is exactly what they want." And I asked myself why bother with a response to such patent nonsense! (I was going to say
"arrant horses--t," but in deference to the sensibilities of some I decided not to.)
1.17.2008 10:09pm
Gregory Conen (mail):
@neurodoc:
It is shocking, of course. That's why it was done that way. But a measured response is still needed. Would those people and their families have been better off if they had been murdered individually over the course of a year?

If terrorists (or anyone) were capable of reliably, repeatedly making attacks on the scale of 9/11, that would be a problem. But all evidence suggests that they are not. The terror attacks since then were smaller in scale. While it is possible that large scale attacks have been prevented, and this information has been withheld for security reasons, no publicly available information suggests this is the case.

For the most part, the response to threats of nuclear proliferation has been rather more measured than the response to terrorism. When it was not, I was critical of the inappropriate response.
1.18.2008 1:41am
Gregory Conen (mail):
The "They hate freedom; eroding freedom to prevent terrorism is exactly what they want" is a possibly unjustified rhetorical flourish. But no more so than "the threat they pose to...Civilization" is.

The purpose of terrorism is to cause terror. The direct casualties are merely an added bonus, in the minds of terrorists. Clearly, the exact political response they want (surrender to a world-wide radical islamist state) is not the political response they got. But their proximate goal, throwing the United States and other democracies into turmoil in fear of their attacks, has been at least partially achieved.

Islamic terrorism is NOT a threat on the level of Fascist or Communist aggression. Unlike those threats, they are amorphous, true; also unlike those threats, they don't have millions upon millions of soldiers and modern armies. The USSR could conceivably have forcibly conquered the free world and ended democracy. There is no way Al-Qaida will.

A measured response is needed. Expansion in human intelligence is a good step; obtaining intelligence via torture is going too far. Confronting nations that harbor terrorists is good; fighting wars of invasion and occupation until our military is overextended is bad.
1.18.2008 2:00am
ejo:
not a threat of the level of fascist or communist aggression-neither were the nazis in the 1930's. they were just a bunch of beerhall losers. modern armies-how about Pakistani nukes?

you have to give some thought to goals, not just actions to date when you assess the threat they pose to the West. simply saying more people die from heart disease than from attacks wouldn't have been a good response in the 30's and 40's and it still isn't today.
1.18.2008 10:30am
neurodoc:
The purpose of terrorism is to cause terror.
Stupefyingly simplistic! They have no purpose beyond causing terror? When they have created enough terror, however much that might be, they go away satisfied? Terror is an ends in itself for them? Or do they have some goals you have failed to mention, e.g., toppling governments (e.g., Saudi Arabia, Egypt, Pakistan, Afghanistan, etc.) and installing Islamofascist ones, even if "a world-wide radical islamist state" is out of reach at this time?

they don't have millions upon millions of soldiers and modern armies
Without tanks, ships (other than fast, explosives-laden motorboats), planes (other than the civilian aircraft they may be able to hijack on occasion), missiles (other than the katushas, qassams, and perhaps odd shoulder-to-air one of the sort that almost brought down an Israeli passenger plane over Kenya), and chemical/nuclear/biologic capabilities (other than the sarin gas they might manufacture and release in subway systems, the dirty bombs they might put together with medical radioisotopes, and the anthrax they might send through the mails and otherwise release), they cannot prevail, or do very much at all other than scare us? ("The purpose of terrorism is to cause terror.")

How many "soldiers" do you reckon they have, and how do you count "soldiers" of the type they employ? Are young women who will blow themselves up in order to achieve the Islamofascists ends "soldiers" in your book? Do you think they have nearly exhausted their supply of such "soldiers," or is there a seemingly inexhaustible pool of believers? Do the Taliban count as "soldiers" for these purposes? The armed fighters of Hezbollah and Hamas? Or do you count only card-carrying members of Al-Qaeda and maybe its close affiliates?

Confronting nations that harbor terrorists is good...
Which countries in particular do you think we should "confront," and how ought we go about it?


[I did say I wasn't going to bother to respond further to such patent nonsense, but I couldn't resist taking a few more whacks at the truly wacky.]
1.18.2008 11:02am
ejo:
I guess, to hold the fantasy that islamic terrorism is meaningless, you have to essentially discount every muslim on the face of the planet. We don't live in that fantasy world, however. There are over a billion muslims with significant numbers of them holding opinions similar to OBL. can you name a single islamic country where islamic radicals aren't on the ascendance, be it through terror or the ballot box? if the answer to this question were "0", we might confidently dismiss them and their bloody acts as meaningless and the people concerned as bedwetters. Can you tell me the number is zero?
1.18.2008 11:15am
wfjag:

How many "soldiers" do you reckon they have, and how do you count "soldiers" of the type they employ?


"How many divisions does the Pope have?"
- J. Stalin

Max Boot "The Savage Wars of Peace" was written post-9/11 but pre-Operation Iraqi Freedom. Before WWII the primary mission of the US military was "small wars" -- usually against insurgencies. Post-WWII and especially Post-Vietnam, the US military abandoned this, and became overtly hostile to the idea of fighting "small wars." In a few places, notably the P.I., the US remained long enough to establish the institutions that were robust enough to allow a functioning democratic tradition to remain. Most places, for domestic political reasons, the US removed its military forces long before that, so that some dictator or other assumed power, and the situation was no better, and not infrequently worse, than before the US intervention (not infrequently leading to a later US intervention).

Ejo wrote:

can you name a single islamic country where islamic radicals aren't on the ascendance, be it through terror or the ballot box?

Yes. Iraq and Bosnia. The question is will the US remain there long enough for the Iraqi institutions to become robust enough to survive after our withdrawal. See Boot’s book for a better statement of the questions and historical analysis, and also to judge the issue of if the US withdraws now, will it have to go back. (Boot does have some observations on the consequences of leaving Saddam in power with substantial military forces after the 1991 Gulf War.) This also seems to have occurred in Bosnia, but with the heavily Croat, Serb, “mixed” and “other” populations and that Bosnia’s Muslim population is generally fairly secularized, it’s probably a special case (and, while the US/NATO forces withdrew, there are still EU forces deployed there, and via contractors like MPRI – which is almost entirely composed of retired US military personnel – there is still something akin to a US military or security presence).

MarkField – Thanks. The Complaint didn’t say where Yoo lives (or, if it did, I missed it).

Spitzer – Thanks. I didn’t know that 42 USC 1988 referenced the RFRA. Doing some quick squib-note review of the RFRA (an admittedly a dangerous way to understand any statute), I found:

Religious Freedom Restoration Act of 1993 (RFRA) (42 USCS §§ 2000bb et seq.) exceeds Congress' power, under §5 of Federal Constitution's 14th Amendment, to enact legislation enforcing Constitution's 1st Amendment clause providing right to free exercise of religion. City of Boerne v Flores (1997) 521 US 507, 138 L Ed 2d 624, 117 S Ct 2157, 97 CDOS 4904, 97 Daily Journal DAR 7973, 74 BNA FEP Cas 62, 70 CCH EPD P 44785, 1997 Colo J C A R 1329, 11 FLW Fed S 140.

This raises some of questions, and you appear a lot more familiar with the RFRA:

1. Since DOJ has to defend the constitutionality of statutes, can it represent Yoo? That would appear to be a clear conflict of interest, since one of his defenses would appear to be that the RFRA, at least as applied, is unconstitutional when it seeks a remedy against him when he is named purely in a personal capacity. And, since 42 USC 1988 does not allow for an award of attorneys' fees to the US, if Yoo is forced to retain individual counsel due to a conflict, can he still be awarded attorneys' fees under 1988?

2. While I found cases where government officials lost their qualified immunity, see, e.g., Rasul v Rumsfeld (2006, DC Dist Col) 433 F Supp 2d 58 (Where plaintiffs, former Muslim detainees at U.S. Naval Station at Guantanamo Bay, Cuba, alleged defendant federal officials flushed Koran down toilet and forced detainees to shave their beards against their faith, claim under Religious Freedom Restoration Act was stated; also, since reasonable officials should have known actions violated Act, qualified immunity was denied.), I haven’t found any cases in which, like Yoo, the defendant was sued individually only and not also in an official capacity. Are there any cases like that in while plaintiff was successful?

3. Suit under the RFRA appears barred on its face under the statute of limitations, since the complaint is about Yoo’s participation in preparing the “Terror Memos”. See Bessard v California Community Colleges (1994, ED Cal) 867 F Supp 1454, 94 Daily Journal DAR 17158, 66 BNA FEP Cas 507 (California’s 3-year catch-all SOL governs RFRA suits.). Yoo is no longer a federal official, so he can’t be enjoined. And, damages are not awardable against the US under the RFRA. See, e.g., Webman v Fed. Bureau of Prisons (2006, App DC) 441 F3d 1022. As it appears that no relief under the RFRA can be awarded against Yoo, can attorneys’ fees be awarded against him under 42 USC 1988 unless there is also a RFRA award? (since 1988 is not applicable to Bivens actions).
1.18.2008 12:29pm
ejo:
so the answer to the ascendance question is not "0". I guess we have a problem then, don't we. I would even quarrel with the Bosnia selection, which brings the total down to 1.
1.18.2008 12:51pm
neurodoc:
ejo, I think you reached too far with "ascendance,' thus allowing wfjag the arguable possibilities of Bosnia and Iraq. If you had asked how many countries with majority Muslim populations did not face serious threats from Islamic radicals, I don't know that Bosnia or Iraq would count. Many jihadis went to Bosnia in the '90s to fight alongside their co-religionists there and subsequently stayed, marrying and having families. While perhaps not "ascendant" at present, it would be a mistake to think there is no incubating threat from Islamic radicals there. And Iraq, radical Islam has been soundly defeated there and it poses no threat to the future of that country? (Radical Islam is not an exclusively a Sunni thing, it can be a Shiite one too, can't it?)

wfjag, it was in response to Gregory Conen's extraordinary confidence that the threat from "terrorists" isn't really that great since "they don't have millions upon millions of soldiers and modern armies" that I asked my question, "How many "soldiers" do you reckon they have, and how do you count "soldiers" of the type they employ?" When Stalin asked how many divisions the Pope commanded, he was mocking the religious leader's "soft power;" when I asked how there are of the radical Islamists and their supporters, I was in no way mocking this enemy's "soft" or "hard" power.
1.18.2008 7:32pm
Spitzer:
wfjag:

(1) Boerne only held that RFRA was unconstitutional as applied to the states (a ruling that RLUIPA subsequently overturned in part). Thus, there's no issue with filing a RFRA claim against Yoo on that ground alone, as he was a federal agent.

(2) There have been at least a handful of cases resolved against government actors (and private actors acting under federal authority) on RFRA grounds. I'd point you to a jury verdict recently reached in the DNJ.

(3) On the SoL point, I can't speak to it right now - SoL is always a tricky issue, and sometimes the relevant question is when did the last act occur that was actionable (and that has been construed broadly in some cases). Although I think the case frivolous (and thus subject to fee-shifting in Yoo's favor), SoL may well be a jury question if there is a reasonable argument that Yoo's subsequent work on legal memos added to the alleged injury.
1.19.2008 11:13pm
jdr (mail):
I'll be shedding many a tear tonight for poor John Yoo. What a travesty of justice that he might face a legal challenge to his department's decision to imprison a U.S. citizen for years without trial or legal redress.

WHAT KIND OF COUNTRY ARE WE LIVING IN WHEN YOU CAN DO THAT TO A MAN LIKE JOHN YOO???

JOHN YOO!!!
1.20.2008 11:25am