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Yoo on Padilla v. Yoo - Part Deux:

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.

Justin (mail):
"the result is a more serious contribution to the discussion of Padilla v. Yoo and its implications."

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. . . ."
1.20.2008 12:58pm
Daniel Chapman (mail):
So you don't think it's possible for a person or group to use litigation to push a particular political agenda, Justin? Or is it just the fact that "9/11" was mentioned that bothers you?
1.20.2008 1:04pm
Justin (mail):
Daniel, its the absurd 9/11 reference - the new Godwin's rule of sorts.
1.20.2008 1:05pm
Waldensian (mail):

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.

I'm not sure he meant to phrase it in exactly that way.
1.20.2008 1:15pm
Bad (mail) (www):
"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."

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.
1.20.2008 1:19pm
LLVR:
Me wants Eugene to apply the mechanisms of the slippery slope and let us know his results
1.20.2008 1:27pm
Steve2:

It will also lead to a risk-averse government that doesn't innovate or think creatively.


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?
1.20.2008 1:27pm
Tugh (mail):
"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."

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.
1.20.2008 1:29pm
pmorem (mail):
but isn't risk-aversion a good thing for it to have

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.
1.20.2008 1:41pm
Steve2:

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.
1.20.2008 1:49pm
Paul McKaskle (mail):
Nothing in Yoo's argument suggests that people unlawfully harmed by governmental policies would also be barred from suing the government agency itself. Yoo's point is against lawsuits as to the individuals in the government who may (or may not) have contributed to effectuating the disputed government policy. If it is appropriate that the government itself should be free of lawsuits in some circumstances, this protection should not be circumvented by allowing the suit against the agent.

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.
1.20.2008 2:06pm
tarheel:
While I think Yoo's argument about this suit has some merit, and I agree the second defense is marginally better than the first, he really ought to stop writing these things. He may be a good lawyer, but the clumsiness and imprecision he has shown in his two attempts at defending himself in the press sure do make me wonder.
1.20.2008 2:14pm
BruceM (mail) (www):
I've taken the position over the past 2-3 years that anyone who supports their argument by claiming that it will prevent another 9-11 is wrong. Yoo is wrong.
1.20.2008 2:18pm
Cornellian (mail):
The Padilla case shows that qualified immunity is not enough.

I really can't imagine why some people accuse this administration of regarding themselves as above the law . . .
1.20.2008 2:24pm
Bruce Hayden (mail) (www):
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.
But your phrasing of the problem leads directly to your answer. Yoo's point is partially that there is a huge cost to what you are proposing, even if everything is totally legal and no tort is committed.

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.
1.20.2008 2:24pm
Cornellian (mail):
It will also lead to a risk-averse government that doesn't innovate or think creatively.

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.
1.20.2008 2:27pm
Kazinski:
Justin:
"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?
1.20.2008 2:32pm
Bruce Hayden (mail) (www):
I think that the question that I would have for those who want to limit immunity, is how would you limit the harm that Yoo is talking about? Part of the problem is that many of these cases are meritless. Some here seem to be suggesting that any merited case justifies any number of meritless cases. But Yoo reminds us that that comes with a big price tag. Shouldn't we at least be trading off the number of meritless cases versus the decreased willingness to work in the government and expose those who do to the cost of defending themselves?
1.20.2008 2:33pm
Shannon Love (mail) (www):
The only real way to short-circuit this is to employ the same tactics against Leftist interest. After all, gun seizures, hate speech laws, environmental regs that constitute takings etc, all poise clear cut constitutional violations.

Sue officials for carrying out those acts and the Left will suddenly discover that policy by tort is a bad idea.
1.20.2008 2:33pm
Elliot123 (mail):
Perhaps we need a well funded foundation to personally sue Bill Keller, lawyers who defend terrorists, law students who aid them, and Yale? The legal system is for sale just as any other commodity. If you have money it is available for your use; if you don't it doesn't cover you. It's no different than hiring a landscaping contractor. The game is to personally bankrupt individuals or organizations who hold different political opinions.

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.
1.20.2008 2:42pm
ejo:
people like justin don't think we have an actual enemy. terror attacks that kill thousands and the plans to kill many more hatched by these folks are just pinpricks to them.

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.
1.20.2008 2:42pm
Justin (mail):
Wow. If you believe Padilla had something to do with 9/11, you're living in a different world than I am, indeed.
1.20.2008 2:46pm
Frater Plotter:
If we take the Nuremberg precedent seriously, then human rights abuses must be treated as individual offenses as well as government torts. Yoo's argument appears to be that participants in government human rights abuses should be shielded by their agencies: that the government (and thus, the taxpayer) should take the fall for a wrongdoing plotted and carried out by specific individuals. This is simply a pissant denial of responsibility, and deserves no more credit than the next piece of whining.

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.
1.20.2008 2:47pm
donaldk2 (mail):
Writing a memo constitutes a tort? This is pure and simple harassment. Padilla is garbage and so are his sympathizers.
1.20.2008 2:59pm
Steve2:

I think that the question that I would have for those who want to limit immunity, is how would you limit the harm that Yoo is talking about? Part of the problem is that many of these cases are meritless. Some here seem to be suggesting that any merited case justifies any number of meritless cases. But Yoo reminds us that that comes with a big price tag. Shouldn't we at least be trading off the number of meritless cases versus the decreased willingness to work in the government and expose those who do to the cost of defending themselves?


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.
1.20.2008 3:01pm
A. Zarkov (mail):
Yoo did not torture Padilla, nor did he authorize his torture (assuming there actually was torture). Yoo simply wrote a legal opinion. This suit is without merit, and is symptomatic of the left-wing activism that permeates our law schools and courts. If you really worry about government abuse of power then pick on those agencies that really abuse it like DEA. The DEA has been roughing people up for at least 30 years. They have burst into innocent people’s homes, terrorizing whole families by mistake. How about the FBI-- crime-lab scandal anyone? How would you like to get declared “a person of interest?” Neither fish nor fowl. Let’s not forget about the IRS.
1.20.2008 3:02pm
grackle (mail):
"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."
Isn't Yoo tacitly admitting here that he was responsible for violating Padilla's clearly established constitutional rights?
1.20.2008 3:04pm
Bruce Hayden (mail) (www):
I've taken the position over the past 2-3 years that anyone who supports their argument by claiming that it will prevent another 9-11 is wrong. Yoo is wrong.
But determining whether this sort of thing is needed to block another terrorist attack against us, etc. is not your decision to make, nor is it in the purview of the courts. It is allocated to the political branches of our government, and, in particular, the President. You don't have enough information to make such a decision, even if you legally or morally could.

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).
1.20.2008 3:04pm
ejo:
didn't have anything to do with 9/11? let's see, he was affiliated with the perpetrators of 9/11, trained by them and sent back to this country to carry on their attacks. nah, he didn't have anything to do with 9/11, not at all-he just wanted to carry on with the destruction and murder hatched on that happy day (happy to him, of course, it killed americans). it must be nice to live in a dream world instead of reality.

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.
1.20.2008 3:09pm
Kovarsky (mail):
yoo's sanctimony is pretty hard to take seriously. i don't know whether people that claim

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.
1.20.2008 3:21pm
Bruce:
Any idiot can file a complaint. If the plaintiffs have alleged a valid claim and can get around qualified immunity, I don't see why Yoo shouldn't have to defend it. If they can't and the case gets dismissed, what is Yoo's beef exactly? That there isn't some sort of pre-complaint judicial review? We don't live in that sort of country, where you need government permission to sue someone.
1.20.2008 3:33pm
Doc W (mail):
"... U.S. anti-terrorism policies."

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.
1.20.2008 3:49pm
DWC (mail):
In the quoted excerpt, Yoo seems to be saying that lawsuits like the one against him are motivated by the prospect of attorneys' fees ("that promise high attorneys' fees") and furthermore, the potential economic cost to individual defendants (defendants should "not [be concerned about the cost] to their own pockets") will deter government officials from pursuing appropriate governmental policies.

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.
1.20.2008 3:52pm
Doc W (mail):
"You"--I should have written "Yoo."
1.20.2008 3:54pm
K Parker (mail):
ejo,

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.
1.20.2008 3:57pm
Kazinski:
Justin:
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:

After being flown to a secret CIA prison in Thailand around mid-April 2002, Al-Qaeda leader Abu Zubaida is attended to by a mix of FBI and CIA agents. A CIA interrogation team is expected but has not yet arrived, so FBI agents who have been nursing his wounds are initially leading his questioning using its typical rapport-building techniques. [Vanity Fair, 7/17/2007] To help get him to talk, the agents bring in a box of audiotapes and claim they contain recordings of his phone conversations. He begins to confess. Just how useful his information will later be sharply disputed. The New York Times will note that officials aligned with the FBI tend to think the FBI’s techniques were effective while officials aligned with the CIA tend to think the CIA’s techniques were more effective. [New York Times, 9/10/2006] But in 2007, Vanity Fair will conclude a 10 month investigation comprising 70 interviews, and conclude that the FBI techniques were effective. After being shown a series of photographs of al-Qaeda leaders, he confirms that Khalid Shaikh Mohammed (KSM) is known by the alias “Mukhtar,” a vital fact US intelligence discovered shortly before 9/11 (see August 28, 2001). He confesses that KSM planned the 9/11 plot, which US intelligence did not yet know. He also lays out the details of the plot. Vanity Fair will later comment, “America learned the truth of how 9/11 was organized because a detainee had come to trust his captors after they treated him humanely.” Zubaida also confesses to a plot against a US ally and reveals the name of Jose Padilla, an alleged al-Qaeda operative living in the US (see Mid-April 2002).


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.
1.20.2008 4:19pm
Owen Hutchins (mail):
Nothing more than yet another assertion that anyone opposing any part of administration policy supports the terrorists.
1.20.2008 4:22pm
Dave Hardy (mail) (www):
"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. "

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.
1.20.2008 4:29pm
Dave N (mail):
Nothing more than yet another assertion that anyone opposing any part of administration policy supports the terrorists.
And conversely, there are some commenters who think that anything this Adminstration does is wrong--and are so blinded by their hatred of GWB that they cannot separate the legal principles involved from their hatred.
1.20.2008 4:37pm
Kazinski:
Owen Hutchins
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.
1.20.2008 4:42pm
Harvey Mosley (mail):
TUGH:

I honestly can't think of a worse public servant than Yoo who single handedly caused more damage to the United States.

How 'bout Janet Reno?
1.20.2008 4:48pm
Eli Rabett (www):
Yoo is worried
1.20.2008 5:01pm
Owen Hutchins (mail):

And conversely, there are some commenters who think that anything this Adminstration does is wrong--and are so blinded by their hatred of GWB that they cannot separate the legal principles involved from their hatred.



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.
1.20.2008 5:17pm
Kovarsky (mail):
Kazinski,

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.
1.20.2008 5:19pm
Owen Hutchins (mail):

Well, Jose Padilla is a terrorist isn't he? Found guilty by a jury of his peers, and all that stuff.



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.
1.20.2008 5:19pm
Kovarsky (mail):
Wow, this is silly --

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.
1.20.2008 5:21pm
Tony Tutins (mail):
People are held responsible for their decisions, acts, and omissions in every other sphere of existence; why should bureaucrats skate free?

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.
1.20.2008 5:23pm
MDJD2B (mail):

I don't see why Yoo shouldn't have to defend it. If they can't and the case gets dismissed, what is Yoo's beef exactly?


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?
1.20.2008 5:23pm
LM (mail):
If Woo's arguments have any merit he's the wrong person
to make them.
1.20.2008 5:24pm
Tony Tutins (mail):

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?

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?
1.20.2008 5:39pm
Tony Tutins (mail):

If [Y]oo's arguments have any merit he's the wrong person
to make them.

Yes, where is Dean Edley's support when one of his team is in the hot seat?
1.20.2008 5:40pm
Kovarsky (mail):
yoo is not spending his own money defending the suit.
1.20.2008 5:48pm
Kazinski:
Kovarsky,
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.
1.20.2008 5:49pm
Kovarsky (mail):
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.

never mind, dude.
1.20.2008 6:09pm
tvk:
Kazinski,

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.
1.20.2008 6:11pm
NickM (mail) (www):
A coordinated effort to file lawsuits against any government official could prevent that person from doing his job, by tying him up with discovery and other proceedings that can happen BEFORE a motion to dismiss is heard.

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
1.20.2008 6:31pm
PersonFromPorlock:
I'm a little curious why nobody here has asked the obvious question: if the threat of being sued can keep government employees from doing their jobs, how do the rest of us cope with the same threat? Don't we all need immunity?

Isn't Yoo's argument just special pleading?
1.20.2008 7:13pm
Dave Hardy (mail) (www):
"People are held responsible for their decisions, acts, and omissions in every other sphere of existence; why should bureaucrats skate free?"

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.
1.20.2008 7:16pm
Bruce Hayden (mail) (www):
I'm a little curious why nobody here has asked the obvious question: if the threat of being sued can keep government employees from doing their jobs, how do the rest of us cope with the same threat? Don't we all need immunity?
Except that what most of us do is non-political, and so frivolous suits aren't being filed against us for what are really policy disputes. A government employee, esp. one at Yoo's level has the potential of affecting a lot more lives than most of us do.
1.20.2008 7:37pm
MarkField (mail):

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.


Your twist of "support" borders on the demogogic.


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.
1.20.2008 7:56pm
Bad (mail) (www):
"Nothing in Yoo's argument suggests that people unlawfully harmed by governmental policies would also be barred from suing the government agency itself."

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?
1.20.2008 8:20pm
Wick R. Chambers (mail):
Worrying about personal liability is something that lawyers in the Bush administration really shouldn't have to concern themselves with. Yoo is certainly correct: it would be a distraction. It would cause one to think quite carefully about the law. Personal immunity, on the other hand, would give one the freedom to deal with terrorism more effectively. Law should be a weapon in the fight on terrorism, not a distraction to those fighting that war. In other words, lawyers in the Bush administration should be free to shape the law, interpret the law and make the law do the Administration's bidding. Otherwise, whose side would the law be on?
1.20.2008 8:21pm
Bad (mail) (www):
"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?"

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.
1.20.2008 8:22pm
Kazinski:
tvk:

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.

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:


In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.


CIA Director Michael V. Hayden said in an interview two months ago that he had informed congressional overseers of
CIA Director Michael V. Hayden said in an interview two months ago that he had informed congressional overseers of "all aspects of the detention and interrogation program."
"The briefer was specifically asked if the methods were tough enough," said a U.S. official who witnessed the exchange.
1.20.2008 9:02pm
eyesay:
All this blather about supporting terrorists.

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.
1.20.2008 9:20pm
Tony Tutins (mail):

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.

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.
1.20.2008 11:48pm
eyesay:
Jeez-o-pete, isn't it time to give this a rest?
No, for several reasons.
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.
Every disputed ballot in Florida was counted twice, by machine.
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.
did ballot counting approach theater of the absurd.
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.
1.21.2008 12:08am
EH (mail):
By his very logic, shouldn't Kazinski be considered a possible domestic terrorism suspect due to the pronunciation of his name?
1.21.2008 12:10am
Anderson (mail):
Shorter Yoo: without absolute immunity, gov't lawyers might be afraid to cook up b.s. arguments legalizing torture and granting the president unreviewable powers.

Quelle-effin'-horreur, mes vieux.
1.21.2008 12:12am
Dave N (mail):
My statement remains unrebutted.
It stands "unrebutted" because it is not worth rebutting. You are a troll--and I do not otherwise engage in conversations with trolls. I would suggest you retrun to Kosland and drink the Koolaid. Your comment is both disingenuous and off topic. Now go away.
1.21.2008 12:13am
Not Eyesay:
Eyesay -- get a grip. First, you're wrong. Second, whatever happened in 2000 doesn't matter to actions post-2004 when there was a new election and the current administration was chosen. Third, will you shut up after 2008 if a democrat wins? Please?
1.21.2008 12:31am
John Herbison (mail):
The qualified impunity immunity 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.
1.21.2008 12:55am
monish (mail) (www):
To finish terrorism the terrorist must not be kept alive or put in front of court.If we think they have any connection with this group then finish them off so that no body will come forward for terrorism.If we do so there is no need for
court putting there head for an argument...

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1.21.2008 1:36am
Bruce:
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?


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?
1.21.2008 2:24am
Kazinski:
EH,
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.
1.21.2008 3:05am
Kazinski:
eyesay,
Read it and weep: Florida recount study: Bush still wins
1.21.2008 3:17am
eyesay:
Dave N (mail): I can't "retrun [sic] to Kosland [sic]" because I have never frequented any such place or website. Moreover, making up stupid names and making insults is not an argument.

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.
1.21.2008 3:52am
Bert Campaneris (mail):
As a small government guy, this suit is perhaps the greatest thing I have ever heard of. Once corporations use their resources to start personally attacking government employees who proffer absurd analysis, the IRS, EPA, and all the rest will be staffed by nothing but a few judgment proof teenagers.

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.
1.21.2008 4:36am
Bert Campaneris (mail):
Mr Field writes, 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.

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?
1.21.2008 4:49am
TokyoTom (mail):
I'm of mixed mind about Voo's arguments, but clearly one conclusion to be drawn from the Bush amdinistrations is that we suffer from want of sufficient personal responsibility for actions by individuals in the government, not too much. (For Pete's sake, we've got a trillion dollar war that still is being financed through emergency measures rather than being handled through the regular budget - at nary a penny's cost to those who brought it to us or sanctioned it.)

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.
1.21.2008 5:39am
eyesay:
Bert Campaneris: I don't believe this suit is "a small government guy" as you say. Dangling modifier.
1.21.2008 5:41am
Bert Campaneris (mail):
I'm sorry eyesay, I miss your meaning.
1.21.2008 6:10am
longwalker (mail):
Eyesay : I watched the whole "riot" in Florida. The cause of the "riot" was an attempt by the Democratic elections officials to move the paper ballot recount into a smaller room where there would be no room for observers. This move violated the provisions of both Florida's Election Law and it's "Sunshine" Law. The ballots had to be counted in a place open to observers and the public. The counting of ballots in a place not open to observers or the public was illegal. Furthermore, the "riot" consisted of a small group preventing the election official from closing the door to the inner room where the ballots were to be, illegally, counted.
1.21.2008 7:03am
Howard Gilbert (mail):
Yoo complains that ordinary people may be faced with large legal costs. The two possible solutions are immunity (which he suggests) or a mandate that the Federal government pick up the legal tab. As it turns out, the second option is already in place in this case. 42 U.S.C. 2000dd-1 (b) was amended by the MCA so that the US Government must "provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses" to represent Yoo or any other Federal employee "with respect to any civil action" arising from "specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity". Of course, Padilla himself is not an alien, but he is being sued for policies and positions he took regarding alien detention and interrogation that Padilla claims also incidentally created an environment that influenced his treatment. The text only requires that the policy apply to aliens, not that the suit be brought by an alien. The only action that involved Padilla himself, and therefore is not covered by this mandate, is the decision by the President to desigate Padilla as an enemy combatant. If the government has to represent Yoo on the rest of this nonsense I am sure they won't break out that one claim to be billed separately.

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.
1.21.2008 7:37am
Federal Dog:
"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?"


Of course not.

Sigh.
1.21.2008 7:43am
Public_Defender (mail):

This time Yoo wisely avoids comparing himself to Abraham Lincoln,


But he properly compares himself to a member of the corrupt Nixon administration.
1.21.2008 8:15am
Public_Defender (mail):
I want my government officials to be afraid of the personal consequences of authorizing torture. Very afraid. Yoo actually makes the case for less immunity.
1.21.2008 8:16am
ejo:
I still ask, since I saw the bedwetter talking points above, what all the brave non-bedwetters were doing in the afternoon on 9/11? as to being afraid of folks in caves, name the islamic nations where the more radical followers of the religion do not hold strong, if not majority, opinions. Probably more countries would be named, I imagine, than countries in the '30's which followed national socialism.

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.
1.21.2008 9:23am
MarkField (mail):

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?


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....
1.21.2008 10:56am
MarkField (mail):

I still ask, since I saw the bedwetter talking points above, what all the brave non-bedwetters were doing in the afternoon on 9/11?


Cleaning our weapons, not our diapers.
1.21.2008 10:59am
Dave N (mail):
I want my government officials to be afraid of the personal consequences of authorizing torture. Very afraid. Yoo actually makes the case for less immunity.
As a government attorney (I assume, since you identify yourself as a "Public Defender"), perhaps you would also like to have all legal advice you give to your clients subject to lawsuit and scrutiny by third parties.

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?
1.21.2008 11:05am
ejo:
cleaning your weapons? for what, a non-existent threat sitting in a cave in Pakistan? you didn't phone your loved ones or worry about what might be coming? to be honest, that sounds like so much talk and nonsense, particularly given your other statements about the lack of a threat. then, instead of being honest about your brilliant california law theory, you go on the offense, casting aspersions on the one who pointed out how wrong you were.

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?
1.21.2008 11:09am
PLR:
Getting back to the main point, why are our enemies, in a time of war, getting access to our courts?

You're asking why Padilla has access to the courts?

What war are you talking about?
1.21.2008 11:44am
ejo:
ah, moving past the bedwetter smear into the "what war, terror is just a tactic, you can't fight a tactic" talking point. let's see, you can't really even use the what did Iraq have to do with terror talking point on this one-Padilla was a member of AQ, was trained by AQ and sent back to the country to kill people by AQ (or, was he an innocent hispanic goat herd who somehow took a wrong turn, a la bugs bunny, and ended up in an AQ training camp?). would you concede, at a minimum, that we are at war with AQ or are you in the Mossad did it/controlled detonation conspiracy camp? did the use of force authorization cover AQ?
1.21.2008 12:07pm
Ryan Waxx (mail):

BruceM: I've taken the position over the past 2-3 years that anyone who supports their argument by claiming that it will prevent another 9-11 is wrong.

Justin: the absurd 9/11 reference - the new Godwin's rule of sorts.



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?
1.21.2008 12:12pm
Tony Tutins (mail):
As a government attorney (I assume, since you identify yourself as a "Public Defender"), perhaps you would also like to have all legal advice you give to your clients subject to lawsuit and scrutiny by third parties.

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.
1.21.2008 12:22pm
NickM (mail) (www):
Public_Defender - if prosecutors enjoyed only qualified immunity, what percentage of convicted criminal defendants do you think would file (§ 1983 or Bivens)lawsuits against them, alleging Constitutional torts?

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
1.21.2008 12:30pm
ejo:
uh, in those cases, the PD actually gets represented by the State-happens all the time in pc/hc cases. that, however, is not a civil lawsuit that is seeking money from the PD. also, I can't see the relevance when applied to a situation involving an enemy in time of war-our enemies should have had the sense to start suing in American courts in 1939, perhaps they could have won.

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.
1.21.2008 12:33pm
Dave N (mail):
Tony Tutins,

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.
1.21.2008 12:37pm
PLR:
Padilla was a member of AQ, was trained by AQ and sent back to the country to kill people by AQ...

Really? Strange that the federal government didn't actually charge him with such a thing.
1.21.2008 12:37pm
ejo:
well, that will be quite a relief to him, as he sits in prison for the rest of his life, hopefully. what do you think he was convicted of, by the way? further, what do you think he was doing? you might want to check things out a little more carefully before you use the ostrich strategy. I expect you would be less credulous if I had laid out the reasons for the Mossad having brought down the towers.
1.21.2008 12:50pm
Oren:
ejo, is it possible (theoretically) that both Padilla and Yoo have both acted badly or is it purely and either/or for you?
1.21.2008 12:56pm
PLR:
"what do you think he was convicted of, by the way?"

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.
1.21.2008 1:09pm
EH (mail):
ejo: "Bedwetter?" Is that term supposed to enhance your credibility and/or move the debate forward?
1.21.2008 1:25pm
Ricardo (mail):
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.

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.
1.21.2008 1:31pm
ejo:
bedwetter-that's the common and often used talking point to discount the possibility that we face any danger from islamic extremism. if you think it might be a problem, you are a bedwetter. for examples, read the MarkField references to Depends undergarments-it's not too difficult to find, so I can't quite understand the show of denseness.

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.
1.21.2008 1:43pm
PLR:
bedwetter-that's the common and often used talking point to discount the possibility that we face any danger from islamic extremism.

Then such term does not apply to me.
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.

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.
1.21.2008 1:59pm
JosephSlater (mail):
Ejo:

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.
1.21.2008 2:00pm
JosephSlater (mail):
lecturing -- always use preview, especially when correcting another poster.
1.21.2008 2:01pm
Federal Dog:
"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."


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?
1.21.2008 2:34pm
Federal Dog:
I should have read all the comments before posting. Dave N makes substantially the same point above.


So: Should PD be made to stand trial on those claims? Why?
1.21.2008 2:37pm
ejo:
well, can you list a few of the countries, other than Germany, where the Nazi movement had a significant presence? how about a couple where they actually ruled the country? Surely, the number must match up to the number of islamic nations where the more extreme versions of the religion have a presence, right?

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.
1.21.2008 2:40pm
MarkField (mail):

Then such term does not apply to me.


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.
1.21.2008 3:05pm
ejo:
Roosevelt was such a bedwetter that he interned Japanese Americans, not accused of crimes, in WWII-surely that makes him the king of all bw's in your strange moral landscape. Look up all the posters and war memorabilia on the issue of security that were printed in WWII-it was loose lips sink ships, not print it and you'll earn a pulitzer.

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.
1.21.2008 3:16pm
JosephSlater (mail):
Ejo:

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.
1.21.2008 3:23pm
ejo:
so, the answer is no, the Nazi movement was in Germany, not other countries. so much for the history lesson promised. thanks for the lesson I did learn-not to worry about history coming from you. as to Roosevelt, tell MarkField, not me. MarkField used him as a sterling example of the fearless model followed by MarkField. I simply pointed out some historical facts that are inconvenient to the argument. I also often read posts about how our government didn't resort to stoking the fears of its citizens during WWII. The posters, of course, are wrong. The government was very concerned, even fearful, about our enemy in that era. they let the citizens know it. did that make them somehow unworthy?
1.21.2008 4:05pm
John Herbison (mail):
Regarding a public defender's immunity of lack of immunity from suit for damages, FWIW a public defender--despite being paid by the state--does not act under color of state law when performing a lawyer's traditional functions as counsel to the accused in a criminal proceeding, according to Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).

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.
1.21.2008 4:19pm
GKH (mail):
The Nazis weren't fascists. They were socialists with a strong nationalist overlay. Now the Italians, they were fascists.
1.21.2008 4:42pm
Public_Defender (mail):

As a government attorney (I assume, since you identify yourself as a "Public Defender"), perhaps you would also like to have all legal advice you give to your clients subject to lawsuit and scrutiny by third parties.


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.


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?


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.
1.21.2008 4:54pm
Dave N (mail):
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.
I was going to leave this thread but this kind of inane comment always frosts me when it comes from the left.

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.
1.21.2008 5:03pm
Dave N (mail):
I would also note that the comparing John Yoo to Lynne Stewart is both inapt and disingenuous.

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.
1.21.2008 5:18pm
ejo:
first they came for Padilla, an AQ terrorist bent on the murder of as many americans as they could. then they came for me. somehow, I'm missing the intermediate steps but I am sure they're out there somewhere. is HRC so much more evil than Chimpy that she is going to start detaining her critics? hmm, on second thought, maybe we better go after Yoo.

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.
1.21.2008 5:28pm
Waldensian (mail):
Ridiculous lawsuit. Massive overreaction by the right-wing-osphere and Abraham.... er.... John Yoo.
1.21.2008 6:20pm
Justin (mail):
Ryan,

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.
1.21.2008 6:27pm
louisvillelawyer (mail):
The Nazis were fascists, not socialists, at least not in the modern sense of the term. See Michael Ledeen's take on the subject.
(starts at the ninth paragraph)
1.21.2008 6:41pm
Christopher Cooke (mail):
I don't see a very strong case for giving absolute immunity to Yoo (which is what he is asking for) rather than leaving the law alone, and letting Yoo defend himself with the qualified immunity that would be afforded to him.

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.)
1.21.2008 6:55pm
Kazinski:
Justin:
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.
1.21.2008 7:31pm
MarkField (mail):

Now, please tell me what is the overt act you claim Yoo did that would make him guilty of conspiracy?


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 necessary for each participant to commit an overt act, it's only necessary that one participant do so. In addition, someone above (Anderson?) pointed out that the complaint actually does include allegations that Yoo did more than just write the memos.

Also, I should have added an additional point regarding CA law -- it requires that any party claiming a conspiracy between attorney and client first obtain judicial screening of the merits before filing the complaint. This is intended to place a barrier against frivolous suits. I'm not sure it does so; in fact, I recently got sued in just such an action where the plaintiff (himself a [suspended] attorney) failed to get such approval. I had to file a demurrer, which 6 months on is still pending. OTOH, if that's the worst thing to befall Yoo as a result of his advice, I'd call him pretty damn lucky.
1.21.2008 7:33pm
Dave N (mail):
Mark Field,

You are right that a conspiracy requires only one overt act, but it requires agreement by all conspirators to break the law.

In this case, while there are a lot of hysterics, there is no credible evidence of anyone agreeing to break the law.
1.21.2008 8:01pm
Bert Campaneris (mail):
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.

I see it was the later. The site you linked to, and the discussion therein, was solely applicable to accountants who provide audit reports for public consumption (thereby allowing the third-party to rely on the audit. It has nothing at all to do with this matter.

By the way, it appears you've yet to engage anyone in debate without including juvenile insults. I know a great many professionals who are trained to deal with this type of intellectual immaturity, would you like a recommendation?
1.21.2008 8:13pm
Bert Campaneris (mail):
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.

I see it was the latter. The site you linked to, and the discussion therein, was solely applicable to accountants who provide audit reports for public consumption (thereby allowing the third-party to rely on the audit. It has nothing at all to do with this matter.

By the way, it appears you've yet to engage anyone in debate without including juvenile insults. I know a great many professionals who are trained to deal with this type of intellectual immaturity, would you like a recommendation?
1.21.2008 8:13pm
davod (mail):
"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."

In court I beleive the said no one died because of her actions. Yet she the information she passed on revoked a moratorium on terrorist attacks in Egypt. Afterwards tourists were massacred.
1.21.2008 8:34pm
Justin (mail):
"In this case, while there are a lot of hysterics, there is no credible evidence of anyone agreeing to break the law."

Huh? The Yoo memos are facially evidence of an agreement to do something unlawful, according to 90% of legal analysts, including every law professor who has analyzed the memo on this website. This is insufficient to determine whether the memos were intentionally wrong, or were of such lack of merit as to fail under the test of qualified immunity, and it certainly doesn't answer standing questions. But certainly there is widespread evidence of an agreement to "break the law" - in that there was an agreement to do something illegal.
1.21.2008 8:48pm
MarkField (mail):

The site you linked to, and the discussion therein, was solely applicable to accountants who provide audit reports for public consumption (thereby allowing the third-party to rely on the audit. It has nothing at all to do with this matter.


CA law is the same for most professions (lawyers, architects and engineers, accountants, etc.). Dave, to whom I was specifically responding, clearly understood that, though I'm sure I could have said it better in my original post.


it requires agreement by all conspirators to break the law.


I can't check this right now, but I think it's a little broader. I think the only agreement necessary is to commit a wrong.
1.21.2008 9:01pm
MarkField (mail):

By the way, it appears you've yet to engage anyone in debate without including juvenile insults. I know a great many professionals who are trained to deal with this type of intellectual immaturity, would you like a recommendation?


Uh, you were the one who attacked me. I've never engaged in any dialogue with you before, yet your very first post addressed to me accused me of either deliberately trying to mislead or of being incapable of understanding. My snark in return was intended to emphasize your rudeness. It doesn't seem to have discouraged you much, though.

As for the "bedwetter" comments, frankly I'm sick and tired of posters here (and elsewhere) who constantly berate liberals as "siding with the terrorists". Or accusing us of treason or whatever. Any time they want to stop is fine with me. Maybe I'm just a bad person, or maybe I've seen Straw Dogs too many times.
1.21.2008 9:18pm
Anderson (mail):
If John Yoo contends that qualified immunity is insufficient here, one wonders which of these two categories he fancies himself as belonging to.

Herbison, I think I love you. Platonically, natch.

(Mark Field, the complaint does indeed allege that Yoo belonged to a group of officials that arrived at various policies. Forgot the link, &my internet access is currently confined to short trips to a fast-food restaurant, but the hat-tip goes to a Balkinization guest post recently.)
1.21.2008 9:43pm
MDJD2B (mail):

Personal immunity, on the other hand, would give one the freedom to deal with terrorism more effectively. Law should be a weapon in the fight on terrorism, not a distraction to those fighting that war.


But, by the same toke, if a Democrat government lawyer issued an opinion that let a terrorist go free and kill Americans and destroyed their property, I would not want that lawyer to be personally liable, any more than I want John Yoo to be personally liable.

Tort actions against government officials acting within the scope of their official duties are simply not an appropriate remedy.
1.21.2008 10:14pm
MDJD2B (mail):

Personal immunity, on the other hand, would give one the freedom to deal with terrorism more effectively. Law should be a weapon in the fight on terrorism, not a distraction to those fighting that war.


But, by the same toke, if a Democrat government lawyer issued an opinion that let a terrorist go free and kill Americans and destroyed their property, I would not want that lawyer to be personally liable, any more than I want John Yoo to be personally liable.

Tort actions against government officials acting within the scope of their official duties are simply not an appropriate remedy.
1.21.2008 10:14pm
MDJD2B (mail):

I want my government officials to be afraid of the personal consequences of authorizing torture. Very afraid. Yoo actually makes the case for less immunity.


Maybe I should want my government officials to be afraid of the personal consequences of letting terrorists have access to American targets that I should sue the people you approve of.
1.21.2008 10:20pm
MDJD2B (mail):
If the people you approve of get into power.
1.21.2008 10:21pm
Tony Tutins (mail):
DaveN: I parsed your remark differently from how you intended it: I read it as perhaps you would also like to have all legal advice you give to your clients subject to lawsuit and subject to scrutiny by third parties. instead of subject to lawsuit by third parties and subject to scrutiny by third parties. So I was keying off "subject to scrutiny by third parties."

In terms of suit by third parties, the question is, does either Yoo or PD have a duty to those who may be hurt by his clients who follow his advice. If the PD advised clients that beating their wives was only a misdemeanor because, as he read the law, wives were merely chattel, then I believe the battered wives would have a cause of action against the PD.
1.21.2008 10:35pm
JosephSlater (mail):
Ejo:

That's one of the lamest responses I've ever read on the VC, and that's saying something. Fascism was the world-wide movement that we were fighting in WWII, not just German Nazism. You were the one that began comparing the Islamic threat in various countries to what we were fighting in WWII, and fascism was clearly in serveral countries.

And also, you seem to think that the internment of Japanese makes current transgressions OK. That argument doesn't follow.
1.21.2008 10:43pm
K Parker (mail):
JosephSlater,

You aren't really claiming the the Axis powers were organic parts of some unified, coherent movement rather than opportunistic allies who shared, at most, a love of authoritarian and totalitarian polity? Really???
1.22.2008 12:12am
Eli Rabett (www):
There were any number of fascist government in Europe before and after WWII

Franco in Spain, Salazar in Portugal, Horthy in Hungary, Dolfuss in Austria, the Iron Guard in Romania, etc.
1.22.2008 1:07am
Kazinski:
JoeSlater,
Ejo specifically cited National Socialism not Fascism, sure National Socialism is a branch of fascism, but the other branches of fascism were different. If ejo had said "Maoism only made its inroads in one country" you wouldn't cite the Stalinist Soviet Union to refute him.
1.22.2008 1:10am
JosephSlater (mail):
KParker &Kazinski:

I copied the relevant parts of Ejo's post below. He is clearly comparing the nature of the threats to the U.S. in WWII and today: "before you go off on how different the meance is. . . ." I personally don't think that's a particularly useful metric. But the "menace" in WWII was fascism. The fact that Nazi fascism, German fascism, and Spanish fascism were not entirely identical hardly seems to matter for this point. They were similar, and they were all allies against us. And today, of course, there are different strains of radical Islam and Jihadism. Heck, some of those folks are fighting each other. If Ejo gets to jumble all those together to count for the current threat, it is even more appropriate to note that several fascist powers were allies in WWII.

Again, I don't see where any of this gets us regarding Yoo, but as an historian, I did want to set the record straight.

Ejo: people like justin don't think we have an actual enemy. terror attacks that kill thousands and the plans to kill many more hatched by these folks are just pinpricks to them. . . .

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.
1.22.2008 9:50am
ejo:
well, I find your history lesson inadequate, I'm sorry to say. The menace of the Nazi ideology was of a different type and kind, something already pointed out by others than what was present in other countries. Further, you don't answer the actual, present day question-how many countries today have a significant presence of those who follow or sympathize with radical islamic thought-as to their menace, at least nukes didn't exist back in the '40's. Morally, practitioners of that philosophy have racial/religious attitudes that might have given the national socialists pause. Finally, getting back to the real point, why didn't we have civil lawsuits being brought by our enemy against wartime leaders in WWII-shouldn't we have allowed, even encouraged, our enemies to sue Eisenhower and others for their "crimes"?

Looking to history, I would have called any party who brought such a suit a nazi supporter, at best deluded and at worst simply evil. if the present menace consists of people whose dreams are similar to those of the nazis, why should I think any different of their mouthpieces?
1.22.2008 11:26am
Tony Tutins (mail):
ejo: why didn't the US treat the Weatherman Underground as enemy combatants? Consider: They were associated with the North Vietnamese; they built bombs and attacked federal installations; and we were in a de facto state of war with North Vietnam.
1.22.2008 1:26pm
steve_roberts (mail):
Wick R Chambers:
"Law should be a weapon in the fight on terrorism, not a distraction to those fighting that war. In other words, lawyers in the Bush administration should be free to shape the law, interpret the law and make the law do the Administration's bidding. Otherwise, whose side would the law be on?"

> The law should be on the side of protecting the rights of
the US (or foreign) citizens, including the rights remaining to those who have been deprived of their liberty by due process. If officials of the executive branch are to have full immunity, you might as well tear up the Constitution and send Congress and the Judiciary home.

JosephSlater:
"the "menace" in WWII was fascism. The fact that Nazi fascism, German fascism, and Spanish fascism were not entirely identical hardly seems to matter for this point.
They were similar, and they were all allies against us"

> The menace, IMO, was the German and Italian (not the Spanish, they were neutral) armies, navies and airforces, and, before June 1941, those of their Russian allies. Fascism is repellent, but it is weapons, not philosophies, which wage war
1.22.2008 2:23pm
Kazinski:
JoeSlater,
While there were other fascist governments in Europe, none of the other were nearly as virulent, hyper-aggressive, homicidal, and just all round dangerous as the Nazi's were. Franco was able to co-exist with the rest of Europe for 30 years after the war. Mussolini wasn't going to go off and start WWII all by himself the way Hitler did, despite is adventures in Ethiopia; he didn't move on Albania until after Hitler overran Czechoslovokia. Admiral Horthy may have been unhappy about the Treaty of Trianon, but was in no position to do any thing about it. Without the Nazis European fascism probably would have just co-existed with the rest of the world until it finally withered on the vine as communism did in the 90's, or the Spanish and Portuguese dictatorships did in the 70's.
1.22.2008 3:21pm
ejo:
there you go again, bringing up history. why don't you just close your mouth and learn at the knees of the man you are responding to.
1.22.2008 3:40pm
Kazinski:
ejo,
I didn't really absorb your point when you made it, but after giving it some thought it is salient in today's environment. There may be conservative or reactionary Islamic regiemes in places like Pakistan (maybe not yet, but in the future), Syria, Saudi Arabia, Yemen, Lybia, Sudan, but unlikely to start any serious conflicts. Add in a virulent very agressive country like Iran, or organization like a much stronger Al Qaeda (think 2001), or pre-2003 Iraq, willing to get something started and rabid enough not to care about the consequences, and things could get real serious.
1.22.2008 4:58pm
neurodoc:
steve_roberts: The menace, IMO, was the German and Italian (not the Spanish, they were neutral) armies, navies and airforces, and, before June 1941, those of their Russian allies. Fascism is repellent, but it is weapons, not philosophies, which wage war
Naziism, so much about German nationalism and the "Aryan" race, didn't hold much appeal for non-Germans and non-Aryans, understandably. Thus, the Nazis weren't much about "soft" power, that is winning over hearts and minds, they were about "hard" power, that is killing, conquering, or causing to cower with those armies, navies and airforces. The Islamic fundamentalists on the other hand, are very much about "soft" power, that is gaining adherents and animating them; and while they are very much about "hard" power too, it is not the "traditional" kind of armies, navies and airforces, but of assymetric warfare, terrorism, and political destablization.

The Nazis clearly posed a serious existential threat to many. And though in the end they fell short of their grand ambition of a thousand year Reich ruling the world, they did turn the existential threat into a horrible reality for at least millions of those they determinedly set out to murder. The Islamic fundamentalists haven't managed to murder or conquer as many as the Nazis did, but that is not to say that they have not already had a huge impact on the world and they do not seriously threaten to have a still greater impact in coming years. Because the Islamic fundamentalists' appeal is not confined to a single country, as was Naziism, not even just to the Middle East or the still more numerous countries of the Islamic world, but rather to every place that Muslims have spread themselves and where there might be converts to be had, and because their appeal is not limited to just a relatively small target audience ("Aryans"), the menace they pose is not small even in comparison to that posed by all the armies, navies and airforces the Naziis and their allies could muster during WWII. And the challenges to our legal system that the Islamic fundamentalists pose, which is the subject of this thread, is vastly greater than that posed by plain old-fashioned enemies like the Nazis, who for the most part wore uniforms or were otherwise not to hard to identify; were under a unified command; were most often encountered on the battlefield, rather than in a great variety of locales, near and far, even in our own midst; etc.

It seems that some prefer not to talk about what Yoo has advocated by way of responses by our legal system to the terrorist threat, in particular the threat posed by Islamic fundamentalists, in terms of "principles" or pragmatic considerations. Instead they have suggested that what Yoo has advocated is in any event not warranted given the magnitude of the terrorist threat we face (e.g., back in 2001, 3,000 Americans were murdered in the space of a few hours, but 16,000 are murdered every year); or the nature of that threat (e.g., 19 thugs with boxcutters trying to terrorize us and get us to react in such a way as to give up our freedoms). To be kind, I find them and their "arguments"(?) utterly unpersuasive.
1.22.2008 5:33pm
ejo:
it's easier to rail about bedwetting or demonize Bush than to face such depressing thoughts. Unfortunately, the problem will survive the Bush presidency and will still be out there, trying to kill us.
1.22.2008 6:00pm
wfjag:
Public Defender wrote:


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.


No, Stewart is not in prison. Check her website for upcoming public appearances. Recently she appeared at Hofstra Law School's 2007 Legal Ethics Conference, entitled, "Legal Ethics: Lawyering at the Edge," October 14-16, 2007.
1.22.2008 6:53pm
Anderson (mail):
"Lawyering over the Edge" would be a more appropriate title for Stewart's talk, methinks. (Not a Lynne Stewart fan, sorry.)
1.22.2008 10:13pm
Oren:
It seems that some prefer not to talk about what Yoo has advocated by way of responses by our legal system to the terrorist threat, in particular the threat posed by Islamic fundamentalists, in terms of "principles" or pragmatic considerations.
I'm sorry but our legal system does not, in fact, change every time somebody new and different decides to cast aspersions on us. If the threat is serious enough to warrant a change in law, then Congress is empowered to do just that. Absence a change in law, it remains exactly what it was before the threat emerged and the duty of all officers sworn to uphold the law likewise remains unchanged.

Let me put it another way, suppose Yoo (and Addington, et al) had done the honest thing and came to the POTUS in 2001 and said here are the list of things we need to do in order to meet this incredible existential threat - we need to repeal FISA and USC18-113, explicitly suspend Habeas and withdraw from the CAT and the GC because they will hamper our ability to prosecute this war. Such an alternate universe would characterize "responses by our legal system to the terrorist threat" (as you put it).

This is not what happened. Instead, the president was advised that he could order things that the law specifically forbade him from ordering. In what sense is that a "response by our legal system" and not a response that obviates the entire purpose of having a legal system at all?
1.23.2008 12:47am
Eli Rabett (www):
Having moved the goal posts from there were not many fascist movements in Europe to well not many of them were as dangerous as Germany we now get that the world could live with Franco, much as it could live with Pinochet. The world survived, many tens of thousands of their victims did not, and millions suffered. You could look it up.
1.23.2008 12:56am