By John Yoo, The Wall Street Journal
Suppose a future president—let’s call him Mitt Romney—declares that last fall’s killing of al Qaeda leader (and American citizen) Anwar al-Awlaki amounted to an “assassination.” He orders a special prosecutor to pursue everyone from the drone pilot who pulled the trigger all the way to Defense Secretary Leon Panetta and CIA Director David Petraeus. The murder investigation triggers lawsuits by Awlaki’s family, litigated gratis by law schools, human-rights groups and their legal allies, whose leaders the president later rewards with plum jobs.
Reverse the political polarities, and you have the counterterrorism policies of President Barack Obama. And that is the past—and the future—that I hope our nation escaped this week with the Ninth Circuit Court of Appeals decision in Padilla v. Yoo. That Yoo is me.
The three-judge panel unanimously agreed that José Padilla, an American al Qaeda operative convicted and sentenced in 2007 for running U.S. terrorist cells, could not sue me for my legal advice that the Constitution allowed his earlier detention as an enemy combatant. Padilla also threw in imaginary claims that he was tortured in U.S. Navy custody.
In a separate case, Padilla had also sued former Defense Secretary Donald Rumsfeld all the way down to the brig commander in Charleston, S.C. He lost at the trial and appeals court. But the Ninth Circuit is easily the most liberal in the land: It recently held, for example, that the Constitution guarantees a right to gay marriage, and it has a spectacular track record of reversals before the Supreme Court. Yet even the Ninth Circuit must have realized that Padilla sought to open up a new, legal front for war.
Recruited by al Qaeda, Padilla left the United States for Egypt in 1998 and then went to Afghanistan in 2000. Two years later, he landed at Chicago’s O’Hare airport but was arrested thanks to the interrogation of captured al Qaeda leaders.
President Bush declared Padilla an enemy combatant in June 2002 in part on my legal advice. After a federal appeals court rejected Padilla’s plea for release, the government transferred him to Miami for trial. A jury convicted him of conspiring to commit murder, kidnapping and maiming, and of providing material support to terrorists. An appeals court recently reopened his case—because it found his 17-year sentence too short.
Nevertheless, a San Francisco trial judge felt that Padilla should have the right to sue me for my legal advice that the Constitution allows the military detention of Americans who join al Qaeda. It would have saved years of worrying about the litigation and potentially millions of dollars in legal fees for me to give in. Indeed, an Obama official even called to ask that I not appeal. In what must be Attorney General Eric Holder’s idea of subtlety, the Justice Department then withdrew as my legal counsel.
Only the intervention of Miguel Estrada, one of the nation’s finest criminal lawyers, gave me the freedom to fight on against the frivolous lawsuit, conducted for free by my alma mater Yale Law School. (Yale’s dean when the suit was filed in January 2008, Harold Koh, now serves as top lawyer for the State Department, where he has blessed the use of drones to kill Americans who have joined al Qaeda.)
We fought in court not just to defend the tough decisions that had to be made after 9/11. We fought to protect the nation’s ability to fight and win the war against al Qaeda—and other enemies—in the future.
Advocacy groups are using Padilla as a platform to attack the nation’s counterterrorism policies, which they believe should be limited to the tools used against common criminals. They advance their agenda by legally harassing officials, agents and soldiers, and so raise the costs of public service to anyone who does not hew to their extreme, unreasonable views.
Unfortunately, the men and women on the front lines of this covert war have reason to doubt the backbone of their superiors. As chronicled in former CIA counterterrorism expert Jose Rodriguez’s new book “Hard Measures,” CIA officials briefed Rep. Nancy Pelosi (D., Calif.) in the fall of 2002 on waterboarding and other enhanced interrogation methods. After becoming House speaker in 2007, she denied being briefed on “waterboarding or any of these other enhanced interrogation methods,” and she later adjusted her story to say she was “told explicitly that waterboarding was not being used.”
Her party led a witch hunt for the CIA officers who conducted interrogations that created the deep reservoir of intelligence that disrupted terrorist attacks on the homeland and ultimately located Osama bin Laden and other al Qaeda leaders.
The executive branch has shown the same lack of backbone. President Obama declared the CIA’s interrogation methods to be “torture” before the courts or his own Justice Department had delivered a considered opinion. He launched an independent counsel to hound CIA agents, even though career prosecutors had already looked into claims of abuse and found no charges appropriate. He tried to close Guantanamo Bay without any real alternative, stalled special military commissions established by President Bush and ratified by Congress, and has relied on drones to kill rather than capture al Qaeda leaders for their intelligence.
The men and women fighting this war will understandably respond by becoming risk-averse or paralyzed by uncertainty—the very attitudes that allowed the 9/11 attacks to succeed. CIA agents are taking out group insurance against litigation. Some drone pilots are not re-enlisting because they have little confidence in this administration to defend them. Some special forces officers worry that the president will reveal sensitive operational information, or blow hard-to-come-by intelligence, just to gain a temporary partisan advantage in an election.
Worrying about future lawsuits will distort official decision-making, which should balance the costs and benefits to the national interest and not worry about personal liability. No one will ever sue a government official for doing nothing, even as dangers loom.
If we are to prevail in this unprecedented war, those elected and appointed to office must show that they will protect those who fight.