The issue raised by the WSJ is not whether the Yale Human Rights Clinic can sue Mr. Yoo on behalf of Mr. Padilla but whether it should—and whether the grown-ups who run the Law School should permit it do so. Since Mr. Padilla is not seeking real damages, the purpose of his suit is principally to limit the techniques available to the government in interrogating enemy combatants suspected of having information about terrorist plans. Limiting interrogation techniques may be a good idea but are the courts the proper venue for accomplishing this worthy goal? Shouldn't this issue be the subject of debate within the legislature or between the executive and legislative branches?

And if lawsuits against government officials, whether midlevel or cabinet level, were to become the preferred method for influencing the debate on controversial subjects, like how to deal with terrorist suspects or irregular combatants captured on the battlefield, wouldn't these suits have a chilling effect on the government's ability to fulfill its duties? Of course the young lawyers at the Yale legal clinic believe that limiting the government's ability to treat suspected terrorists harshly is a desirable goal—and so do I. But everyone who brings a suit believes he is right. So absent restraint on the part of potential litigants and their advocates, what's to stop every aggrieved individual or crusader from paralyzing the government by bringing a lawsuit against some official? What if the families of terrorism victims, for example, sued a Democratic AG for not being harsh enough in interrogating a terrorism suspect who turned out to have knowledge of the attack that killed their relatives?

But there is an additional wrinkle particular to this suit that makes restraining it more sensible: The suit against Mr. Yoo is being brought not merely by individual lawyers on behalf of their individual client but by agents of the Yale Law School. And the aims of the Law School are not necessarily identical with the aims of its student legal clinics. In certain exceptional cases, the administration of the law school might seek to restrain lawyers in its legal clinics from launching suits under the Yale imprimatur if it found those suits to be at odds with some principal that the the administration decided carried more weight.

So, yes, the Yale Human Rights Clinic is within its rights to sue Mr. Yoo. But the dean of the Yale Law School would also be within his rights to remind the students of a more, or at least equally, compelling interest—namely the importance of allowing the government to function without the chilling effect of politically motivated lawsuits (whether construed as conservative or liberal.) And after engaging the students and faculty in an academic debate about these competing interests, he might even feel that it's his responsibility as leader of the law school to come down on the side of restraint.

Excellent post that draws core distinctions quite lost on Bazelon. The question of whether to bring a civil suit on behalf of a convicted terrorist against a lawyer (and Yale Law grad) for advice that that the lawyer gave the government raises a host of issues -- besides the policy ones addressed by Uncrazy, there is the threshold legal issue of whether the lawsuit can prove proximate causation and other issues that likely will defeat the suit. Political considerations should not override legal considerations at a law school, even one as politicized as Yale has become under Dean Koh.

As was pointed out in the article, chilling of certain types of government over-reach is a GOOD thing. If Yoo had exercised the kind of fiduciary duty that we as citizens expect of those we empower to govern, as opposed to just trying to figure out how to allow his boss to weasel-word his way around a longstanding law, then Yoo would not have the exposure he has.

we WANT to chill that sort of behaviour.

Furthermore, there is more to this than meets the eye. Remember that in Padilla's original suit the question of torture and competence came up. And it was ruled that any discussion of torture was not admissible and hence competence was asserted.

BUT if Yale can show that Padilla was tortured, it opens up 2 avenues of appeal for Padilla

1. that the government's acts of abuse and/or torture were so egregious as to merit the sanction of dismissing the charges
2. if torture is proven - then it opens the door to revisit the competency hearing which in turn opens the door for a dismissal on the grounds that the government interfered with Padilla's ability to participate in his own defense.

So its more than just limiting the Government's ability to weasel word its way into torturing people - even though that alone would be more than a sufficiently good cause to bring the lawsuit

But you and Uncrazy essentially ARE suggesting that the political implications (convicted terrorist vs. govmt lawyer) should trump legal considerations (The Government's right to torture citizens). The policy issues alone almost mandate that this suit be brought.

the threshold legal issues also mandate it. Here we have a US citizen who was deprived of his Habeas rights and tortured. And essentially The Government got away with it. If that's not a threshold legal issue, I dunno what is.

"wouldn't these suits have a chilling effect on the government's ability to fulfill its duties?"

What happened to Padilla was a textbook example of the government not fulfilling its duties. Namely the duty to expedite prosecution ("a speedy trial") and present a coherent set of charges and evidence against a U.S. citizen accused of terrorism. The government's duty to protect neither is nor was in jeapordy - he was in custody. The question then becomes what happens when a suspect is in custody.

So I agree with Degsme, this is the type of behavior we want to chill. The way the padilla case was handled by Yoo and the like severely undermined the government's credibility to bring charges against future suspects - thats not a good thing. We need to end the irresponsible behavior that undermines our system of justice.

Your point is well taken: the torture of a U.S. citizen is a grave matter and legitimate basis for a suit. It's also true that the courts may sometimes be the best way of influencing what you refer to as policy issues. In this case, however, the debate about how far the government should be allowed to go in extracting information from terror suspects is already being joined in the press and in the congress. Not only has the policy debate not been stifled, it has become a cause celebre for politicians on both sides of the aisle. So Mr. Padilla's case is only about serving notice to government officials that they will be sued if they implement or abet the implementation of policies that someone objects to. The objection may be valid; it may not. My point is that we should have a high threshold for launching suits against government officials, especially when the press and the congress are already fully engaged in addressing the underlying issue.

I'll certainly agree that there should be a high threshold, and I'm also fairly confident that in this case it was crossed.

You're right that the media is debating it. Unfortunately, this "debate" needs to culminate in some form of legislation. The first part ended with the military commissions act, which I consider to be a huge win for the Bush administration and a loss for civil liberties. It could have ended there, but human rights agencies and people like myself are, frankly, in it to win it. And I think we've been on the losing end of this ever since the patriot act was passed.

If debate continues but nothing changes, then the status quo wins - and I'm not happy with that. So I'm perfectly fine with racheting up the tone of the situation by seeing a case like this go to court for political purposes, because I think those political purposes are of nonpartisan intent (if this where president Clinton, Kerry, or Gore's policy, I'd still agree) as well as essential to our freedoms.

Suppose you're a lawyer in a university human rights clinic. (Perhaps you are.) Suppose you believe that the (high) threshold for suing a government official has been crossed but the dean of your law school thinks otherwise. Your planned suit would be launched under the imprimatur of your law school with all the attendant prestige, publicity and tacit support this implies. Does your dean have the right or even the duty to stop you from launching your suit against the government official if he disagrees with it? Would that infringe your rights or the rights of your plaintiff?

The intention of the suit against Mr. Yoo is to chill behavior by government officials that might be unconstitutional. Fair enough. Chilling behavior that might violate the constitution should be encouraged. But wouldn't the dean of the law school be doing the same thing by preventing his legal clinic from bringing a suit against government officials that didn't meet his threshold for suing the government? Wouldn't he be chilling behavior (on the part of his clinic) that might violate the constitution, say by distorting the separation of powers or interfering with the executive's ability to deal with grave threats?

I realize this argument is getting tendentious, especially considering the dean of the Yale Law School chose not to interfere with this suit. My point is everyone who brings suits against the government believes they have God on their side. Sometimes they're right. But believing they're right, they're certainly not going to voluntarily restrain themselves or feel compelled to think through the broader implications of their suit if those implications are at odds with their own interests. That's as it should be in an adversarial legal system.

But here we have a situation where someone inside—the dean of the law school—could have thought through the broader implications and decided not to go forward with the suit. That he decided not to in this case might mean he agreed with the suit (perhaps despite reservations), he doesn't think deans should micromanage their legal clinics, or the suit never showed up on his radar before it was launched. Once the suit against was launched by one of his legal clinics, however, his decision becomes fair game for the WSJ and others to criticize.

By the way, I agree with you. I am politicizing this. But not because I agree with the inhumane treatment of prisoners.

What happened to Padilla was a textbook example of the government not fulfilling its duties. Namely the duty to expedite prosecution ("a speedy trial") and present a coherent set of charges and evidence against a U.S. citizen accused of terrorism.

You're forgetting the military aspects of this and putting the needs of Padilla to have a trial above the needs of the war effort. The government has a duty to not allow dirty bombs from going off and killing or exposing to radiation large numbers of people.

The government's duty to protect neither is nor was in jeapordy - he was in custody. The question then becomes what happens when a suspect is in custody.

Removal of one guy in a plot may not stop the ceneral plan (what happened to the 20th 9-11 guy?). If Padilla had access to radioactive material, then with his capture the obvious next move is to try to recover the material itself.

I'm not claiming that the gov didn't go to far, but claiming they didn't have a duty to protect is nonsense.

I didn't say that they didn't have a duty to protect, I said that "that duty was never in jeapordy." Meaning: the government had fulfilled their role to protect in investigating and aprehending him, and most certainly continuing the investigation afterwards.

Additionally, I am most certainly not forgetting the military aspect of this. I find it appalling that a US citizen who was first investigated and apprehended by federal agents (civilians) can be turned over to the military for a potentially indefinite stay. Thats what happened. Our ability to investigate\fight terrorism was not aided by this transfer. The reason it happened was because the government could not generate sufficient evidence against him.

If a U.S. citizen engages in an act of terrorism, they must be prosecuted under US law. The same goes for foreign nationals operating on our soil. There are, in fact, laws against terrorism. Of course the military should do what is necessary to investigate and apprehend those responsible, but people need to be prosecuted for their crimes. If we want, we can call them prisoners of war, but to my knowledge, we haven't declared a single person to be a P.O.W. since 9-11.

Enforcing due process is not at cross purposes to combating terrorism - in fact, it would certainly help our efforts if we were to make sure that more evidence was gathered, and we could avoid this time-and-energy-wasting arguement over habeas corpus. We wouldn't have to sue John Yoo. You plan an attack, you go on trial for terrorism, you go to prison for life. Simple. Military brigs and guantanamo do not make this process any easier.

There are NO MILITARY aspects of this. That is in fact the really horrific part of how Yoo advocated The Government act. Yoo had The Government suspend Habeas on a citizen completely away from any battlefield. So unless you agree with Yoo and see the US Constitution as something "quaint" (in which case Al Qaeda has won), then The Government was way out of line.

And no The Government does not have an inherent "duty" to make life perfectly safe for large numbers of people at the price of freedom. The US was founded on the concepts that Liberty requires risk:

We pledge our LIVES, our Fortunes and our Sacred Honor - Decl of Indep.

Give me Liberty or Give me Death - Patrick Henry

Those who would sacrifice any of our precious liberties for a measure of temporary security deserve neither liberty nor security - Benjamin Franklin

And if you don't think that the risk to the signers of the DoI or to Patrick Henry was greater than ANYTHING the average citizen faces from Al Qaeda, then you need to go back and read some history

Why should the threshold be high? Why should the threshold for LAUNCHING a suit be high? The threshold for making it past Summary Judgement is already so high, and The Government has so many powerful tools to deflect these lawsuits that I would argue the threshold should be LOWER than that for bringing normal tort suits.

So I do not agree that we need to have a high threshold in place.

There also is a dramatic difference between the role played by the HR Org towards The government (that of a watchdog) and the role played by the Dean towards the HR Org (that of an independent referee). The Dean should largely keep his hands off.

I didn't say that they didn't have a duty to protect, I said that "that duty was never in jeapordy." Meaning: the government had fulfilled their role to protect in investigating and aprehending him, and most certainly continuing the investigation afterwards.

Assume the plot was real (like the people at the time had to). There's an quantity of radioactive material in terrorist hands, and all we've picked up it one grunt. Presumably we have a limited amount of time before tens of thousands of people start to die.

Sounds to me like that duty to protect is in jeapordy.

You plan an attack, you go on trial for terrorism, you go to prison for life. Simple. Military brigs and guantanamo do not make this process any easier.

And where does the information that you were planning an attack come from? If it's after the fact, the people who did it may be dead.

Enforcing due process is not at cross purposes to combating terrorism

Except that some times it is. The trial of the guys who did the first WTC bombing was used to create smarter and more skilled terrorists. Some of the guys in Guatanamo were taken on a battle field and not given lawyers right then and there by the soliders.

When the law is being used by the bad guys against us it needs to be changed. One of Bush's errors was he saw that and then spend far to much time ignoring the law rather than change it.

Assume the plot is Real. OK. Give Me Liberty or Give Me Death. Yes, people die protecting democratic institutions. Yes The Government would be committing political suicide if it did not seek to protect the general public, but unless it can demonstrate either in "hot pursuit" or via "oath or affirmation" (aka warrant) that the suspect is in the process of deploying such a bomb, then The Government has no right to search, seize, or otherwise control the suspect, his property or to limit his freedom.

If tens of thousands die, then it is a horrific crime. And retaliation against the sponsoring nation will be swift and supported by the world over (in fact that retaliation is part of what puts the limits on this sort of terrorism). Just as world opinion supported the invasion of Afghanistan, the same would be true here. But democracy and the commitment to democracy, demands that we all be willing to die for that commitment. Remember that the signers of the Declaration of Independence committed their "Lives, ...Fortunes, and...Sacred Honor" to the defense of democratic principles. And the immediate threat to them was far more real than anything leveled at Padilla or any other terrorist plot that has been allegedly interdicted.

If enforcing due process is at cross purposes with combatting terrorism then so be it.

Those who would sacrifice any of our precious liberties for a temporary measure of security, deserve neither liberty nor security - Benjamin Franklin.

If the law needs changing, you need to change it within the limits of the US Constitution. While the deaths of thousands, even millions would be horrific, the consequences of not having the courage to risk that is to surrender what shreds of democracy we have.

Remember that the USSR has a very fine sounding Constitution. :

Article 50:In accordance with the interests of the people and in order to strengthen and develop the socialist system, citizens of the USSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.

But of course we all know that in the name of "national security" the USSR Government trampled these rights for millions, including my grandfather who was tortured to death because of a book he wrote

I for one, hold the US to a higher standard than that of the USSR.

You quote great words, written by great men. However I find it unthinkable any of those great men would tollerate the avoidable deaths of tens of thousands. When we look at how they actually behaved when put to the test...

Lincoln suspended habeas corpus during the civil war. From Thomas Jefferson we get a theory which can be summed up as "The Constitution is not a suicide pact" <link>

My expectation is they'd do something very similar to what we did. I.e. put so much pressure on Joe that his mind broke. If it got his conviction tossed out so be it, the authorities had other things to worry about. Given the situation they thought they were dealing with, that was the only realistic action at the time.

The law and society can tollerate the occassional murderer "winning" because the authorities have to follow the rules. O.J. comes to mind. However wars are fought with higher stakes and fewer rules. That's not to say they have NO rules, but the model of treating every terrorist as a civilian criminal failed with 9-11.

Which is not to say that the law doesn't have a place in this whole thing, or that Bush has dealt with that aspect especially well.