John Yoo Vindicated

Arnold Ahlert is a former NY Post op-ed columnist currently contributing to JewishWorldReview.com, HumanEvents.com and CanadaFreePress.com. He may be reached at atahlert@comcast.net.


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Padilla’s attorney Jonathan Freiman was incensed. “Incommunicado detention, brutal treatment and death threats do not represent American values and are universally condemned,” he said. “Hopefully no one else will face the horror that Mr. Padilla and his family have faced. The law should guarantee that, and the Ninth Circuit erred in concluding that Mr. Yoo’s actions were not ‘beyond debate.’” Freiman also said he’s deciding whether to pursue further appeals, including a possible U.S. Supreme Court review.

It would be an uphill battle at best. The Ninth Circuit is arguably the most liberal Appeals Court in the nation, and of the three Justices who ruled here two of them, Judges Rebecca R. Pallmeyer and Fisher, were appointed by Democrat president Bill Clinton. The third Judge, N. Randy Smith, was appointed by George W. Bush. Furthermore, this was the second lawsuit filed by Padilla to no avail against a Bush administration official. In January, the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals threw out a lawsuit filed against former Defense Secretary Donald Rumsfeld, similarly noting that private citizens have no right to sue government officials for damages resulting from military detention and interrogation.

Yoo and his lawyer, Miguel Estrada, characterized this latest ruling as a vindication. “The 9th Circuit’s decision confirms that this litigation has been baseless from the outset,” said Yoo, now a law professor at the University of California, Berkeley. “For several years, Padilla and his attorneys have been harassing the government officials he believes to have been responsible for his detention and ultimately conviction as a terrorist. He has now lost before two separate courts of appeals, and will need to find a new hobby for his remaining time in prison.”

That prison time may be extended. Last September, the United States Court of Appeals for the 11th Circuit in Atlanta ruled that Padilla’s current sentence is “substantively unreasonable,” further noting that it was “too great a departure” from federal sentencing guidelines for terrorists. “Padilla poses a heightened risk of future dangerousness due to his Al Qaeda training,” the court said. “He is far more sophisticated than an individual convicted of an ordinary street crime.”

Whether this latest ruling by the Ninth Circuit Court of Appeals represents the death knell in the seemingly endless progressive attempts to find some Bush administration official guilty of “torture” remains to be seen. One thing is certain: even one of the most liberal courts in the nation takes a dim view of the attempt to define torture as such after the fact. “In 2001-03, there was general agreement that torture meant the intentional infliction of severe pain or suffering, whether physical or mental,” Fisher wrote. “The meaning of ‘severe pain or suffering,’ however, was less clear in 2001-03.”

What was clear, especially in the days and months immediately following 9-11, was that the United States faced an existential threat of unknown scope and capability. One in which the initial domestic attack of what might have been a series of domestic attacks inflicted the greatest number of casualties in the nation’s history. And not in a remote location like Pearl Harbor, but in New York City and Washington, D.C. The tallest building in the nation was vaporized, the nerve center of our military capacity was damaged, and if not for the heroism of the passengers on United Airlines Flight 93, perhaps the White House or U.S. Capitol Building may have also been damaged or destroyed.

People who assail government officials tasked with making critical decisions within such critical situations have the luxury of 20/20 hindsight their intended targets did not. It is worth reminding such people that some of those decisions have likely given them that luxury, in that nothing resembling 9-11 has since occurred. When John Yoo made his recommendations he was tasked with finding what then appeared to be a nearly impossible balance between constitutional rights and national survival. His detractors, whether they know it or not, are criticizing him for “erring” on the side of national survival. That says far more about them than it does about a man whose only “crime” was protecting his fellow Americans.

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  • sononthe_beach

    American Patriots 1, hyperventilating liberal traitors 0

  • scum

    The architect of pain, "vindicated."

    • Larry

      The saviour of thousands of lives, vindicated.

  • Schlomotion

    John Yoo may be vindicated, and Jose Padilla is definitely a terrorist, but his loss of this case is a Dred Scott v. Sandford loss. This idea that we don't know at certain times that people have rights and that peasants cannot sue government officials is garbage.

  • guest

    he wasn't vindicated you idiot. the court simply took the bizarre position that he couldn't have been involved with torture because torture hadn't been adequately defined at the time. And that lack of clarity was the direct result of what he and the OLC were doing: namely, muddying the definition of torture. You can call it a smart legal strategy that paid off in terms of liability. But to call it vindication is complete nonsense, as well as the height of moral relativism. The definition of torture had been settled, but the OLC memos purposely questioned those definitions for the express purpose of covering the asses of the government torturers and those who directed them. Stalin would be very very proud (and Orwell, horrified).

    • sedoanman

      So his conviction was upheld on a technicality. The courts have a long way to go to even the score the guilty have racked up having their convictions reversed on a technicality.

      • Larry

        No, it wasn't upheld on a technicality, it was dismissed, thrown out of court, those bringing it were told there was no case to answer, stop wasting our time.

  • Ronald Johnston

    I see nothing wrong with torture against the evil barbaric terrorists who want to be a martyr and sit on the right hand of Allah with 21 virgins!!!! These people are 20 centuries away from being civilized!!!!

  • sedoanman

    If you can't get the Ninth to agree with you against a conservative, your case is doomed.

  • WilliamJamesWard

    Padilla, if they threw him into a room with Hillary Clinton,Nancy Pelosi, WassermanSchultz,
    Roseanne Barr, Rosie O'Donnell et. al., for me that would be torture, for Padilla maybe heaven,
    we all have our idea of what would be torture.

    . The idea here is to impress on would be terrorists the thinking that they are at
    some point doomed and will stay in their dark hole until judgement day. Summary execution
    of those who do not have information to squeeze out of them should be standard operational
    procedure, it should be done publically to get the idea across that traitors, terrorists and enemies
    of America have no future and nothing to look forward to but retribution, swift and final…………………….William

  • Anamah

    People must prevail.

  • RonCarnine

    When an American becomes an enemy combatant, does he still retain his American citizenship? I don't think so. Padilla is now an American so he can fill his charges and lawsuits? Again, I don't think so. He is a terrorist who hated this country and without any doubt set out to kill and maim American citizens. I don't think he has a leg to stand on.

  • Whitehunter2

    Torture is what the communists did to John McCain and hundreds of other American POWs at the Hanoi Hilton–murdering many of them and leaving most of the others maimed for life with permanent, exruciating injuries like McCain's dislocated shoulders. And the communists did it merely for sadistic recreation, not even to elicit information about planned future attacks (which in any case would have been an atrocity under the "only-name-rank-serial-number" rule. Yet not a single one of the communist war criminals–either from Vietnam or from North Korea (just ask the crew of USS Pueblo)–has ever been charged with anything.

    [CONTINUED BELOW]

  • Whitehunter2

    [CONTINUED FROM ABOVE]

    What Padilla "suffered" was far less than what any boot-camp recruit to the U.S. military undergoes–and much, much less than prescribed in the initiation rituals of most fraternities even today. Padilla is lucky he still has his arms, legs, eyes, and fingernails, not to mention a left-wing, America-hating lawyer. Or, for that matter, his life. That's way more than he planned for his intended victims.

    I remember vividly that during the Vietnam War, our home-grown traitors insisted that American POWs weren't entitled to Geneva protections because it was "an illegal war." Yet these same traitors nows insist, absurdly, that monsters like KSM and his fellow jihadists, somehow, ARE entitled to exactly these punctilious rules. It speaks volumes about all of them.