Where Lawfare Meets Lawsuit in the Case of Padilla v. Yoo

• Publication year: 2011

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 34, No. 4SUMMER 2011

Where Lawfare Meets Lawsuit in the Case of Padilla v. Yoo

Joseph Marchesano (fn*)

A strict observance of the written laws is doubtless one of the high virtues of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.(fn1)

I. Introduction

According to John Locke, a leader's first duty is to protect the country, not to follow the law.(fn2) On September 12, 2001, a day after the events of September 11, during a National Security Council meeting, then-President George W. Bush told John Ashcroft, "Don't ever let this happen again."(fn3) The message could not have been clearer: "The President had to do what he had to do to protect the country. And the lawyers had to find some way to make what he did legal."(fn4)

Lawyers solve problems, however, by looking back rather than by looking forward.(fn5) Typically, when presented with a legal problem, an attorney must apply the current law to the facts at hand. Indeed, even at the early stages of legal analysis, the lawyer may have a particular theory that he or she hopes to prove using the existing law. Yet, however thought-out and creative a particular theory is, the lawyer, especially a government attorney writing opinions that affect the constitutional rights of citizens, is not permitted to misconstrue the law to fit the theory. John Yoo, an attorney in the Office of Legal Counsel (OLC) who was largely responsible for authoring the infamous "torture memos," misconstrued, twisted, and bent existing law to fit an illegitimate legal theory-that the use of harsh interrogation techniques would not constitute torture.

After the terrorist attacks on September 11, 2001, the Executive Branch relied on the OLC for unprecedented legal advice on how to deal with issues of national security. Because the Executive Branch desired to operate within the confines of the law, it called upon government attorneys to find an optimal balance between protecting the country and protecting the country's laws. According to Senator Bob Graham, "[W]e need excellent, aggressive lawyers who give sound, accurate legal advice . . . that [allows] the operators [to] do their jobs quickly and aggressively within the confines of law and regulation."(fn6) Because the President's power to act must be authorized by an act of Congress or the Constitution itself,(fn7) a team of lawyers, dubbed the "War Council," drafted a series of memoranda with the goal of outlining the constitutional grounds for President Bush's actions in the War on Terror.(fn8)

The decision to intimately involve lawyers in national-security strategy, however, is not without consequences, resulting in concerns about the use of lawfare. Lawfare is defined as "the use of the law as a weapon of war."(fn9) Proponents of lawfare use it to obtain moral high ground over the enemy and to intimidate heads of state from acting out of fear of prosecution for war crimes.(fn10) Al-Qaeda training manuals, for instance, instruct readers that, if captured, they should file claims of torture or other abuse regardless of whether such abuse actually occurred.(fn11)

"Legal jihad" is another type of lawfare used to describe Islamist organizations that file lawsuits in American and foreign courts with the purpose of punishing those who engage in public discourse about radical Islam.(fn12) The lawsuits are often baseless-filed merely to intimidate de-fendants.(fn13) For instance, the Council on American Islamic Relations sued Cass Ballenger, a former U.S. Congressman, for reporting the group to the CIA and FBI for allegedly raising funds for Hezbollah.(fn14) Lawfare is not limited to American courts. For instance, because the United Kingdom's libel laws are plaintiff-friendly, as opposed to America's defendant-friendly libel laws, the House of Lords established a government panel to look into the possibility of amending its laws to make it tougher for radical Islamic groups who bring defamation suits in Britain to intimidate writers.(fn15)

With respect to the War on Terror, lawfare creates a fear that judicially created remedies authorizing damages "would invite enemies to use our own federal courts to obstruct the Armed Forces' ability to act decisively and without hesitation."(fn16) Because of the fear that our enemies would use our court system against our country's government actors, Yoo defined torture so narrowly that the success of any prosecution or lawsuit alleging torture was unlikely. Authors of the OLC memoranda thus sought to find a way to circumnavigate the court system entirely. As Yoo wrote in his book, War by Other Means: An Insider's Account of the War on Terror,(fn17) he "developed an extra-judicial, ex parte assessment of enemy combatant status followed by indefinite military detention, without notice of opportunity for a hearing of any sort. . . completely prec-lud[ing] judicial review of the designation."(fn18)

The OLC memoranda and the use of lawfare formed the basis of Jose Padilla's recent lawsuit. Padilla, an American citizen whom President Bush designated an enemy combatant(fn19) in 2002, sued John Yoo(fn20) for the alleged abuse he suffered as a result of the memos Yoo au-thored.(fn21) Notably, Padilla's capture was the impetus for two memoranda written by Yoo. The suit posed a question originally addressed by our Founding Fathers, which was how to balance fighting a war against ter-ror-at home and abroad-with fighting a war using tactics of terror.(fn22) Determining the proper role of the Judiciary in such an inquiry presents another complicated legal question-is it proper to exclude the Judiciary from national-security issues due to the fear that enemy combatants will use the courts against the Executive Branch? While courts should defer to the coordinate branches of government with respect to the "core strategic matters of war making,"(fn23) the Supreme Court has clearly held that a "state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."(fn24)

This Note argues that, despite the concern that the use of lawfare threatens American national-security interests, Padilla v. Yoo was decided correctly, both in its legal reasoning and in the appropriateness of the Judiciary's intervention in a domestic question of constitutional rights. Part II examines Padilla's capture and detention, as well as the development of the torture memos. Part III discusses the constitutional violations alleged in Padilla. Part IV suggests that, despite the use of lawfare, the Judiciary properly adjudicated a domestic-affairs issue and acted within its authority in not deferring to the coordinate branches of government. Part V analyzes the trial court's reasoning in denying Yoo's qualified-immunity defense. Finally, Part VI summarizes the balance government lawyers seek to achieve and the integral role of the Judiciary in that process.

II. The Confluence of the Torture Memos and the Capture and Detention of Jose Padilla

After Padilla was imprisoned as an enemy combatant, government officials attempted to find constitutional validity for harsh interrogation methods. Padilla remained in solitary confinement for three years with no charges filed against him; however, in 2005, criminal charges were suddenly filed.(fn25) On August 16, 2007, a jury convicted Padilla and two codefendants of conspiracy to murder, kidnap, and maim people in a foreign country,(fn26) conspiracy to provide material support for terrorists, and providing material support for terrorists.(fn27) On January 22, 2008, Padilla was sentenced to seventeen years and four months(fn28) in the Federal Maximum Security Prison in Florence, Colorado.(fn29) This Part discusses the circumstances of Padilla's capture, the conditions of his confinement prior to his civil suit against Yoo, and the development of the torture memos, which as noted above were drafted in part based on Padilla.

A. "This guy Padilla's a bad guy."(fn30)

Jose Padilla, later known as Abdullah al-Muhajr, was born in Brooklyn and raised with his four siblings in Chicago, where he began drinking and flashing gang symbols in his early teens.(fn31) When he was fourteen, Padilla and a friend were drinking on a street corner and decided to rob a couple of Mexican immigrants.(fn32) Padilla's friend stabbed one of the immigrants to death, and Padilla kicked him in the head "because he felt like it."(fn33) Padilla spent five years in a juvenile detention center.(fn34)

In 1991, when he was twenty, Padilla got into a traffic dispute when he cut off and flashed a revolver at another driver.(fn35) The other driver attempted to follow Padilla, and Padilla fired a single shot into the air.(fn36) Padilla was charged with three felony counts and sent to jail.(fn37) A few months into his sentence, Padilla was charged with battery on a law enforcement officer after he struck a prison guard.(fn38)

At some point during this incarceration, Padilla decided to change his life. He began fasting and working out, and he read the Bible cover to cover.(fn39)

Once released, Padilla worked at a Taco Bell and...