In the early days of the War on Terrorism, the Bush administration wanted to know what interrogation techniques were legal. So it asked the DOJ’s Office of Legal Counsel for a memo on what could and could not be done to prisoners. Staff lawyer John Yoo was tasked with doing the research and writing. He did his research, wrote his memo, and that was that.
Well, no. That was not that. Some people didn’t agree with his legal reasoning. More people (most of whom never even read the memo) shrilly lambasted it as a “war crime.” We’re not particular fans of the memo ourselves (see our parody of it here), but we think it’s beyond stupid to call it a war crime, or even the slightest bit of misconduct. He did what any lawyer in that situation is supposed to do: he analyzed existing law, and gave his opinion of what the law said. The fact that other people disagree, even disagree strongly, doesn’t mean he did anything wrong. The fact that his conclusions don’t comport with other people’s policies or principles still doesn’t mean he did anything wrong. Even if he was wrong, that doesn’t mean he did anything wrong.
But now the 9th Circuit is struggling with the issue of whether Mr. Yoo can actually be sued for having written that memo. Again, we’re no fans of the memo, but how he could possibly be sued for having given fair legal advice is beyond us. Allowing this case to go forward, as we’ll discuss in a minute, would have enormously bad consequences for the government and the military.
The case was brough by Jose Padilla, a.k.a. Abdullah al-Muhajir, who was arrested in 2002 for plotting a radioactive “dirty bomb” attack. Padilla was in military custody for about four years, during which time he claims to have been subjected to sleep deprivation, stress positions, extended periods of light and dark, and other interrogation techniques. Padilla filed a lawsuit last year against John Yoo, claiming that Yoo’s memos “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.” Almost exactly a year ago, the district court judge in San Francisco denied the motion to throw out the case. Judge Jeffrey White said that “government lawyers are responsible for the foreseeable consequences of their conduct,” and that Yoo exceeded the normal role of a government attorney, in that he wrote both the Administration’s interrogation policies and the legal opinions justifying them.
Yoo appealed that decision, arguing that not only is there immunity here, but letting the suit go forward would interfere with the President’s war powers. Liberals take note: the Obama administration is siding with Yoo.
Padilla’s argument to the 9th Circuit is that someone has to be held accountable for what happened to him.
Oral arguments were yesterday (listen here). There’s a nice writeup on them over at Law.com. Of the three-judge panel, Judge Raymond Fisher seemed clearly to be on Padilla’s side. Fisher held that Yoo wasn’t merely acting as a lawyer, but was actually involved in setting administration policy. Fisher also said that Hamdi v. Rumsfeld means the government doesn’t have total immunity here — it “doesn’t have a blank check, and that’s what we are wrestling with.” (Where Fisher gets that from, we don’t know. Hamdi only says that the government can’t hold a U.S. citizen indefinitely without some judicial review.)
Siding with Yoo and the government was Judge Pamela Rymer, who questioned whether the courts could even establish standards for “imposing liability on a non-policymaking lawyer.” She said this case was like the Maher Arar case (for which the Supreme Court denied cert. yesterday), which dismissed a lawsuit against U.S. government officials for causing a man to be tortured.
The third judge, Rebecca Pallmeyer, didn’t really signal which way she was leaning. Pallmeyer isn’t an appellate judge, she’s with the Northern District of Illinois, sitting here by designation. She’s a Clinton appointee, and former administrative law judge for the Illinois Human Rights Commission. That might indicate an innate leaning in favor of Padilla here, but really that’s the merest speculation.
We don’t see how Yoo can be sued here. But let’s say the case does go forward. Even then, we still don’t see how Padilla has a valid claim. Sleep deprivation, stress positions, light/dark confusion — these are all long-standing interrogation techniques that have been used for decades. They do not cause physical injury, though stress positions can be extremely uncomfortable. Sleep deprivation and light/dark confusion are fantastic non-violent painless methods for breaking down an individual’s resistance to questioning.
The whole point is to overcome someone’s free will, and get them to give you information they don’t want to reveal. We don’t allow that for criminal prosecution. The Fifth Amendment is specifically designed to ensure that people aren’t forced to convict themselves out of their own mouths against their will. But criminal penalties and national security are entirely different. Unlike criminal cases, in national security situations we want to overcome the individual’s free will. If that can be done without causing serious physical injury, then great.
And the constitutional rights at issue only apply in the criminal sphere. They don’t apply to enemy combatants or the conduct of war. Pretrial detainee rights don’t apply to combat prisoners. There may be some floor of constitutional rights that any individual is entitled to, but the criminal-justice rights are not that floor.
So we’d say there’s no legal claim to start with. And even if there were, we can’t see how Mr. Yoo would be a proximate cause of any injury. It’s not as if he ordered Mr. Padilla’s treatment. He merely opined that it would be lawful.
But there’s a deeper policy danger here, if the court sides with Padilla.
Right now, the United States is waging the most careful warfare ever. And lawyers are a big part of it. When an officer gets some video from a Predator or a C-130, or a radio call from troops in the field, and that officer has to make an urgent call right then and there whether to authorize fire, he’s going to get a fast legal opinion first. A military lawyer is going to be consulted for a legal opinion on whether the action is appropriate.
If Padilla wins, then those lawyers will not be immune from lawsuit for the consequences of their legal advice, even though they’re not the ones giving the actual orders. That’s going to have a huge chilling effect on whether those lawyers will give the advice they believe to be best, if giving the right answer could get them in trouble. The result would be advice that unnecessarily hamstrings military operations, resulting in prolonged combat and unnecessary casualties and expense. Either that, or officers will just start ignoring the advice, with equally negative results.
Likewise, siding with Padilla would have a chilling effect on lawyers throughout the DOJ. The government relies on them to give the best legal advice they can. But if their best advice is politically unpopular, they’re going to shy away from it in order to avoid personal liability when some shrill person files suit.
Our government needs legal advice that is right, not legal advice that is politically convenient. Knocking down the immunity of government lawyers from suit would only knock down the government’s ability to get the best advice it can.
And that’s just stupid.
[Edit: We forgot to add that this would also be a victory for the enemy, giving them yet another long-term weapon for their ongoing lawfare — fighting those countries with a rule of law by using their own law as a weapon. See more on this at our Primer on International Law here.]