By JOHN YOO, OPINION May 3, 2012, WSJ
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.