Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Former Justice Department official John Yoo, the now-disgraced author of our nation's most ill-conceived and damaging terror-law policies, wants you to feel sorry for him.
He's just been sued in civil court by former "dirty bomb" suspect Jose Padilla, who alleges that Yoo was behind his designation as an "enemy combatant" and the torture he, Padilla, endured, while in military custody.
The lawsuit, Yoo writes in a touchy-feely op-ed in the Philadelphia Inquirer, is an example of the terrorists' use of the law to wage war on Americans. "They use cases such as Padilla's to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress," laments Yoo. "'Lawfare' has become another dimension of warfare."
This is quite an ironic position to take for the man who practically invented "lawfare" as a tool against terrorists. Yoo has written relentlessly about the need for the executive branch to push beyond heretofore recognized legal limits in pursuing terrorists. He has advocating in favor of expanded presidential power - even greater than the great power the Bush Administration has taken for itself since September 11, 2001. And now he claims he is shocked - shocked! - that he is the subject of an aggressive, almost daring, lawsuit by one of his former targets.
Whether Padilla was tortured or not, and whether or not Yoo is responsible for that torture, Padilla's lawsuit has little chance to succeed. Government officials almost always are shielded from civil liability - from having to pay out money - for their conduct while in office unless that conduct is wildly beyond the scope of their duties. Alas, in the world in which we live, a Justice Department official who pushes for "waterboarding" and other forms of torture does not fit that bill. Padilla will lose, probably quickly, and with decent justification.
But that doesn't excuse Yoo's cynical attempt to accuse Padilla's lawyers of playing the same game that he invented. He writes in the editorial that "Padilla is no innocent" and cites as proof Padilla's conviction this past summer in Miami on terror conspiracy charges. But the facts behind that conviction are shaky at best and, indeed, this past week have been the subject of a contentious sentencing hearing. For his part, for example, Padilla alleges that Yoo-inspired torture policies - and Yoo-inspired litigation tactics - deprived him of his rights (he's an American citizen) to a fair trial.
Even the op-ed piece itself is a masterwork of strategy. It presents a kinder, gentler Yoo; a fellow who wants you, potential juror, to know that he "had the good fortune to grow up in the Philadelphia area, attend the Episcopal Academy for high school, and go off to Harvard for college and Yale for law school. I studied and eventually taught war powers," Yoo writes, "a subject that always interested me because of Philadelphia's rich history with the Revolutionary and Civil Wars and my family's origins in South Korea, the scene of one of America's more recent conflicts." What's next? Oprah? "The View"? "Dancing with the Stars"?
This guy's bright ideas brought international scorn to the United States, begat Abu Ghraib, and tied up Congress and the courts in terror law disputes for years (with no end in sight). Along with David Addington, the vice president's chief of staff, Yoo is primarily responsible for virtually all of the legal missteps and overreaches since the Twin Towers fell. And now he wants you to consider him a victim. Oh, and if, understandably, you aren't game to go down that road Yoo wants you to be on his side anyway because he's fighting for people in government who aren't as fortunate as he is.
"My situation is better than most," writes Yoo, "since I am a lawyer with many lawyer friends (that is not the oxymoron it seems)…. But what about the soldiers, agents and officers who have to respond to the next 9/11 or foreign threat? They will have to worry about personal liability, hiring lawyers. Would we have wanted President Abraham Lincoln to worry about his personal liability for issuing the Emancipation Proclamation freeing the slaves (done on his sole authority as commander-in-chief)?"
I didn't know Abraham Lincoln. He wasn't a friend of mine. But Mr. Yoo, you're no Abraham Lincoln.