Liberals Open New Home Front on War on Terror

Terror suspects are waging 'lawfare' on U.S.

John Yoo

is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute

Walk down Broad Street and you pass by a brown mansion, squeezed in between a music store and a Banana Republic. With its statues of proud soldiers in front, the Union League stands as a symbol of the sacrifices necessary to win the Civil War.

After being sued by convicted terrorist Jose Padilla, I wonder whether our nation today has the same unity and tenacity to defeat the great security challenge of our day, the rise of fundamentalist Islamic terrorism. Even as our brave young soldiers fight in Afghanistan and Iraq, and our intelligence agents succeed in disrupting follow-ups to the 9/11 attacks, terrorists are using our own legal system as a weapon against us.

They use cases such as Padilla's to harass the men and women in our government, force the revelation of valuable intelligence and press novel theories that have failed at the ballot box and before the president and Congress.

"Lawfare" has become another dimension of warfare.

Padilla is no innocent. Last summer a Miami jury convicted him of participating in an al-Qaeda support cell in the United States. Prosecutors now are asking the court to sentence Padilla to life in prison. The conviction did not even address his detention in 2002 at Chicago's O'Hare Airport on allegations that he had returned from Afghanistan to carry out a "dirty" bomb attack on a major U.S. city. According to the Bush administration at the time, Padilla had received the green light from Khalid Shaikh Mohammed, the planner of the 9/11 attacks.

At the time, I was an official in the Bush administration Justice Department working on the response to the 9/11 attacks. Our lives had taken very different paths. Padilla had turned to drugs and crime in Chicago and was convicted of murder as a juvenile. He became a radical follower of fundamentalist Islam, left for Egypt in 1998 and journeyed in 2000 to Afghanistan, where he trained to become a terrorist at al-Qaeda and Taliban camps.

I had the good fortune to grow up in the Philadelphia area, attend the Episcopal Academy for high school, and go off to Harvard for college and Yale for law school. I studied and eventually taught war powers, a subject that always interested me because of Philadelphia's rich history with the Revolutionary and Civil Wars and my family's origins in South Korea, the scene of one of America's more recent conflicts.

I worked on the legality of the decision to place Padilla in the hands of military authorities in June 2002. The 9/11 attacks on our nation's capital and financial center, and the loss of 3,000 American lives, placed the United States at war with al-Qaeda, a fact that Padilla's lawyers do not accept. They have always asserted that Padilla could be considered only a criminal defendant and must enjoy the benefits of the civilian criminal-justice system.

They are wrong. Both the president and Congress have agreed that the United States is at war, and Congress passed an authorization for using force against any groups, nations or people responsible for the 9/11 attacks. Capturing prisoners has been a permanent feature of war throughout human history; hundreds of thousands were detained during World War II alone. Sometimes, unfortunately, the enemy has included U.S. citizens - in the Civil War, every Confederate soldier was a citizen, and in World War II some Americans fought in the Axis armed forces. They never had a right to sue the soldiers who caught them.

We are in a difficult war against an unprecedented enemy. Its members deliberately disguise themselves as civilians and carry out surprise attacks on innocent civilian targets. They do not have a territory, city or population. They are trained to claim abuse when captured and to appeal to the legal system to tie up democracies in knots.

It is a difficult job for our government and armed forces to adapt the rules for war to such an unconventional, non-state opponent.

But Padilla and his Yale Law School attorneys think that these decisions are better second-guessed by plaintiffs' lawyers and judges rather than our elected leaders. They challenged Padilla's detention and lost in the federal Court of Appeals in South Carolina, before the government sent him to Miami for prosecution.

Think about what it would mean if Padilla were to win. Government officials and military personnel have to devise better ways to protect the country from more deadly surprise attacks. Padilla and his lawyers want them, from the president down to lowest private, to worry about being sued when they make their decisions. Officials will worry about all of the attorneys' fees they will rack up to defend themselves from groundless lawsuits.

My situation is better than most, since I am a lawyer with many lawyer friends (that is not the oxymoron it seems). I can fend for myself; fine attorneys have volunteered to represent me, and the government may defend me. But what about the soldiers, agents and officers who have to respond to the next 9/11 or foreign threat? They will have to worry about personal liability, hiring lawyers.

Would we have wanted President Abraham Lincoln to worry about his personal liability for issuing the Emancipation Proclamation freeing the slaves (done on his sole authority as commander-in-chief)?

If so, then we will have a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances. These are exactly the conditions that make a nation susceptible to a surprise attack, whether a Pearl Harbor or a 9/11.

John Yoo, a former Bush administration Justice Department official, is the author of "War by Other Means."