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Townhall…
First the Public
Service, Then Endless Litigation
By Debra J. Saunders
Last month, the website Politico reported that the Department of
Justice dropped its representation of former Defense Secretary Donald
Rumsfeld, his former deputy, Paul Wolfowitz, and other defendants in a
lawsuit filed by convicted al-Qaida operative Jose Padilla and his
mother. The Department of Justice continues to represent Defense
Secretary Robert Gates, but no longer the Bushies.
Padilla, you may recall, is an American citizen who was arrested at
Chicago’s O’Hare International Airport in 2002; authorities claimed
that he was plotting to set off a radioactive “dirty bomb.” After the
Bush administration designated Padilla as an “enemy combatant,” he was
held in a South Carolina Navy brig for 44 months.
Padilla was not convicted for plotting a U.S. terrorist attack --
largely because the case against him was built on information gleaned
during harsh interrogations. But in 2007, Padilla was convicted for
“conspiracy to murder, kidnap and maim persons in a foreign country”
and “material support for terrorism.” A judge sentenced him to 17 years
in prison.
From his cell, Padilla now is suing Rumsfeld, Wolfowitz and others on
the grounds that his “enemy combatant” status, military detention and
the harsh interrogations -- the use of stress positions, sleep
deprivation and threats -- were unconstitutional. The suit originally
named former Attorney General John Ashcroft, a number of lower-level
officials from the brig and 48 unnamed John Does -- including guards
and orderlies whose name tags were covered -- against whom Padilla
later dropped his complaint.
Last month, U.S. District Judge Richard Gergel of South Carolina threw
out Padilla’s suit.
In a way, it doesn’t matter. Padilla can’t lose. He’s in prison
already. It won’t hurt him to appeal Gergel. In 2005, the Fourth
Circuit Court of Appeals upheld Padilla’s military detention -- and
still he can sue. The ACLU is involved. Padilla is only seeking $1 in
damages -- but the big money, as far as taxpayers are concerned, is in
the legal fees his attorneys seek.
In the meantime, defendants have had to live with a nightmare hovering
over their heads. Now they face the added expense of legal bills to
defend themselves for defending this country. The DOJ only pays legal
fees of up to $200 per hour. Former CIA attorney W. George Jameson
observed, “$200 an hour, that’s kind of a junior attorney in a big law
firm. That doesn’t get you very far.”
Padilla also is suing former Justice Department official John Yoo for
writing memos that authorized the use of harsh interrogation
techniques. In 2009, U.S. District Judge Jeffrey White of San Francisco
ruled that the case against Yoo, who was told to hire a private
attorney, can go forward. Please note: The courts haven’t looked at
whether Padilla’s charges are factual.
Jameson recently co-founded the nonprofit Council on Intelligence
Issues to provide legal assistance and other services to current and
former intelligence officers. The Politico story, he told me, made the
intelligence community somewhat nervous, although “it’s hard to tell
how nervous to be.” It depends on why the DOJ did what it did.
Alas, the Justice Department won’t say why it won’t represent Rumsfeld
and crew. Spokeswoman Tracy Schmaler explained that such “matters are
confidential and covered by the attorney-client privilege.” Personal
counsel ensures that employees “receive full, complete and independent
legal advice.” An unnamed private attorney source involved in the case
told Politico that the DOJ can’t fulfill its duty to represent clients
“zealously” for policy reasons.
Jameson tells me it is not uncommon for the feds to drop representation
when there is disagreement on a case. It can be advantageous for a
defendant to have a private attorney if the feds are lukewarm. One
reason he is not as troubled as you might expect: “I think the
president understands the importance of continuity.”
Fair enough, but in dropping the Padilla defendants, Justice changed
course in what seems to be a partisan move.
I fear for the next set of John Does. They’re not going to be able to
afford $1,000-per-hour attorneys who specialize in this area of
litigation.
In August 2001, FBI supervisors impeded agents’ efforts to get a search
warrant for Zacarias Moussaoui’s laptop. He later pleaded guilty to
helping plan 9/11. Want more?
I feel for the muckety-mucks, too. They must go to sleep painfully
aware that their public service now can mean endless litigation
tomorrow. If they anger the other political spectrum’s lawyers, the
reward will be depositions, attorney consultations -- and now more
likely, the lion’s share of the legal tab.
Read it at Townhall
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