Why shouldn't Jose Padilla sue John Yoo? - By Emily Bazelon - Slate Magazine

Why shouldn't Jose Padilla sue John Yoo? - By Emily Bazelon - Slate Magazine: The author, admittedly a friend of the litigants, can't understand (or pretends to be unable to) why it's wrong to criminalize policy differences.

Here's the short version from a less credulous perspective:

1. Lawyer named John Yoo working for DoJ is asked - as part of his job - to give a legal opinion. His bosses want to know how rigorously they can interrogate suspected terrorists without going over the line into torture, which is illegal under US and international law.

2. Said lawyer follows his bosses' instructions and gives his opinion, in the form of the "Torture Memo". The result might be good, bad or ugly - folks disagree on that - but it seems impossible to hold that he didn't (a) follow his bosses' instructions and (b) do his job.

3. These same bosses take his work, combine it with other considerations including political ones, and pick a course of action for the armed services and other parts of the executive branch.

4. Jose Padilla gets arrested, gets treated as an "enemy combatant" and eventually gets treated as a criminal defendant.

5. Jose Padilla gets convicted - in a regular criminal court, by a jury - of engaging in a conspiracy to commit murder, kidnap, etc.

6. Activist lawyers at Yale decide to sue the lawyer from items #1-2 above, personally, for doing his job, using the Bivens precedent.

Here is where I think the Democrat/Liberal approach is tremendously dangerous.

Bivens is for getting relief when an executive branch agency violates your Fourth Amendment rights (and presumably other rights). Whether it's a rogue agent, or his boss issues wrongful and unlawful orders, or whatever, if you have your rights violated in certain ways you can ask to have the wrong-doers held accountable.

So, who should be sued? Everybody in item #3 above? The people who put Padilla in the military brig? The contractor who built the brig? The maker of the car used to transport him? The secretary who filed the lawyer's memo, made copies and faxed them?

If the Left really wants to make the specific treatment outlined by John Yoo illegal, they control Congress - they can PASS A LAW making it illegal. But they can't or won't. So instead they want to intimidate people who really are doing exactly the job they were hired to do, for the crime of not thinking like a Leftist.

Slate's writer, Emily Bazelon, commits a serious sin of omission, claiming that Yoo isn't facing much risk: "It's also worth noting, in this context, that Yoo isn't facing financial ruin or even risk: Following Padilla's wishes, the suit asks for damages of exactly $1. And DoJ has to offer to provide and pay for Yoo's defense."

Bazelon fails to mention that, if Yoo loses, he has to pay the $1, PLUS the other side's legal expenses, which DoJ will NOT cover. Why would they? If Yoo is guilty, then by definition he was acting outside his official capacity (even though common sense says he was). That will be millions of dollars. Oh, but "Yoo isn't facing financial ruin or even risk" - right.

The real lesson here is that the Left will go to any lengths - even destroy the inner workings of government and create new Thought Crimes - even criminalize legitimate policy differences - to win a political struggle.

The Yale lawyers in question should have their case thrown out with prejudice and have to pay Yoo's and DoJ's expenses.